Response from David S. Oderberg to “Against Conscientious Objection In Health Care: A Counterdeclaration And Reply To Oderberg”

I am grateful to Prof. Savulescu and Dr Giubilini for taking the time and care to respond in detail to my Declaration in Support of Conscientious Objection in Health Care. I also thank Prof. Savulescu for giving me the opportunity to reply to their lengthy analysis. The authors make a series of important criticisms and observations, all of which I will face directly. The topic of freedom of conscience in medicine is both contentious and likely to become increasingly urgent in the future, so it is as well to dispel misunderstandings, clarify assertions and respond to objections as thoroughly as possible. That said, I hope I do not try the reader’s patience by discussing Giubilini and Savulescu’s objections point by point, in the order in which they raise them.

Conscientious objection in health care – that is, healthcare practitioners objecting to performing certain legal, safe, and beneficial medical procedures (e.g. abortion) that a patient requests by appealing to their personal moral values – is one of the most debated topics in medical ethics at present time.

Reply: I object to this way of characterising conscientious objection (CO). (i) CO encompasses more than procedures: it includes all manner of health-care services and treatments. (ii) Whether a given treatment (procedure, service, etc.) is safe or beneficial is itself precisely what is in dispute in many cases. (iii) The term ‘personal moral values’ devalues the source of the objection. The conscientious objector believes that a given treatment violates their deeply and sincerely held ethical principles, whether secular or religiously grounded.

Although at the moment doctors’ private conscience enjoys a lot of legal protection – most laws that make abortion legal contain clauses that exempt doctors from performing the procedure if they so wish.

Reply: This is false in at least two respects. First, the authors restrict the question of conscience to abortion. Even if most abortion laws around the world come with a conscience clause, this does not amount to ‘a lot of legal protection’ for conscience. (What is the force of ‘private’ – again to devalue the appeal to conscience?) I am concerned – and the Declaration I authored reflects this – with all aspects of health care. Abortion, I argue is but a flashpoint of the conscience debate for purely historical reasons. As euthanasia prohibitions are relaxed around the world, conscience debates will move in that direction, and then in many other directions as medical technology and its availability continue their rapid advance.

Secondly, the authors think that a conscience clause exempting a practitioner from ‘performing’ a procedure – say abortion – is good enough, whereas defenders of CO are concerned also with protection from being compelled to cooperate with or assist in objected-to procedures, within reason. The sad case of the midwives Doogan and Wood shows why exemption from performance is not enough.

We have provided reasons, both in this forum and in our academic work, for why we think that conscientious objection in health care is not morally permissible and should not be allowed in the case of procedures that are legal, safe, beneficial, autonomously requested by patients and, more generally, consistent with the standards of good medical practice (see e.g. Savulescu 2006Savulescu and Schuklenk 2017Giubilini 2014, Giubilini 2017). Some people disagree and advance reasons for the opposite view.

Reply: This is a tendentious way of putting the disagreement. If the authors added ‘and [procedures that] in no way violate moral principle to administer’, I for one would sign up to their formulation. The problem is that conscientious objectors believe that the procedures they object to are not safe, or not beneficial, or if safe and beneficial are otherwise procedures that violate moral principles. The authors make it sound as though we all know or we all agree about what is safe and beneficial (and otherwise morally permissible) but that conscientious objectors have a prima facie irrational concern. This is just not the case.

One of the scholars who has more clearly and straightforwardly articulated the principles and reasons in support of conscientious objection in health care is Professor Oderberg of Reading University. Prof Oderberg was recently invited to debate the issue with Julian Savulescu at the Masters Course in Practical Ethics run by the Uehiro Centre here at the University of Oxford. On that occasion, Prof Oderberg’s defense of conscientious objection centred around a series of principles and considerations that he very effectively formulated in the 17 main points that constitute his “Declaration in support of conscientious objection in health care”, published on the University of Reading website and which is available for people who agree with him to sign.

We believe this declaration should be discussed because it presents in a clear, accessible, and rigorous way the reasons that often underpin positions in favour of conscientious objection in health care, but that are not always so clearly formulated. However, we want to explain why we think that each of the points of the Declaration fails to support the idea of a right to conscientious objection in health care. We are presenting here below each of Prof Oderberg’s points immediately followed by our reply.

  1. Freedom of conscience and religion are fundamental rights in any liberal, democratic society professing pluralism and tolerance.

OUR REPLY: We agree. Hardly anyone in our Western societies would deny that these are fundamental rights. However, needless to say – and Professor Oderberg certainly agrees – these are not absolute rights. There is hardly any absolute moral or legal right. In this case, there can be constraints both with regard to what kind of things a person can do or refrain from doing in the name of their conscience, and with regard to the circumstances in which they can legitimately do or refrain from doing these things. In particular, it remains to be established that a generic right to freedom of conscience entails, logically or ethically, a right to conscientious objection to certain specific activities within a specific profession that a person freely chooses.

Reply: On the contrary, freedom of conscience must entail this if it entails anything at all. From freedom of conscience comes the right not to be compelled by the state to act in ways that violate one’s deeply and sincerely held moral and/or religious principles. This basic civil right does not vanish as soon as one freely takes up ‘a specific profession’, any more than freedom of expression or freedom of assembly, for example. To be sure, one’s civil rights become subject to various hedges and qualifications; we can and should have a deep debate about where the limits lie. But that these basic rights are extinguished because a person chooses a profession (most of us have to, don’t we?) strikes me as implausible and ungrounded.

Professional standards and protection of other people’s right to health care, for instance, weigh heavily against extending a right to freedom of conscience into the domain of professional obligations. Individuals are free to choose careers that do not involve activities they morally object to, but if they choose otherwise, they should take on the responsibilities that their professional role entails. People can have their conscience, and eat it too. Just not in professions that require them to do what their conscience proscribes.

Reply: The ‘free choice’ argument enunciated here is probably the most common one against medical conscience rights. Repetition does not, however, make an argument sound. What is the import of the fact that a person freely takes up a profession – that they become a mere functionary of the state, or of their professional standards body? Doctors as mere state functionaries is not an idea with a great history behind it. Or do medical professionals become mere personal valets of their patients because they have freely chosen to practise their profession? Suppose a person were forced to become a doctor; what difference would that make in the authors’ eyes? Given that the ‘right to health care’ apparently means that conscience rights are expunged (if they ever existed in the first place), why should it matter to the authors whether ‘legal, safe, beneficial, autonomously requested’ care is provided by a doctor who is dragooned rather than a volunteer?

Freely choosing a profession does not entail that you ‘sign up’ to every requirement laid down by that profession’s current standards, or that you must obey every law governing that profession no matter how unjust you believe it to be. To think otherwise is to concoct a veritable recipe for professional corruption. Suppose I freely join the legal profession. I then discover that the way to success, advancement, promotion to partner, the esteem of my colleagues, is to construct massive tax avoidance schemes that, while within the letter of the law, totally break its spirit and result in major unfairness. Must I go along with all of this because I freely chose to be a lawyer, because I voluntarily signed up to the rules of the game? No, I should be legally permitted to resist such involvement without fear of discrimination, demotion, or lack of advancement; and I certainly should not be barred from entering the profession in the first place. Why is health care any different?

In other professions, and for many activities within the medical profession, professionals are not allowed to simply follow their conscience and ignore good professional standards. For example, they are not and should not be allowed to refuse to prescribe antibiotics, administer vaccines, deny blood transfusions, and so on. A general principle of freedom of conscience does not justify these objections.

Reply: I have never said otherwise. On the contrary, where there can be no reasonable disagreement that administering a certain treatment is safe, beneficial, and no threat to the professional or moral integrity of the practitioner, there should be no right to conscientious objection. It is not about ‘simply following conscience’ or ‘ignoring good professional standards’. I am all in favour of good standards and not treating one’s conscience as a kind of excuse to get out of doing something one does not like. The appeal to conscience is a serious affair, never to be taken lightly. A legal and regulatory framework is needed that protects the right but also enables adjudication of particular cases. As far as I am concerned, for the most part the common sense and skilful judgment found in our courts is the mechanism by which the assessment of a conscientious objection as reasonable or unreasonable should be carried out.

  1. Article 18 of the U.N.’s Universal Declaration of Human Rights proclaims: ‘Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.’ The words of Article 18 of the International Covenant on Civil and Political Rights, and of Article 9 of the European Convention on Human Rights, are almost identical.

OUR REPLY: We wholeheartedly agree. But to the extent that these codes are inspired by the principle stated at point 1 above – as indeed they are – they are subject to the same considerations: the rights mentioned are not absolute ones and it remains to be established that they entail a right to conscientious objection to certain specific activities within a freely chosen profession.

Reply: I have already addressed the entailment between the general right and the specific right, but I would add that the civil rights of an individual are not lost merely because one joins a group with its own set of rules of conduct, although the rights may well be qualified. For example, a doctor’s civil right to free speech does not mean she can say whatever she likes to a patient about their situation; there are rules of professional courtesy, discretion, and so on. The idea that civil rights are somehow extinguished or superseded by dint of membership of a professional body, however, cannot be accepted.

If Giubilini and Savulescu’s reasoning were correct, then one must deny freedom of conscience to individuals as citizens as well, since although most people do not ‘sign up’ to be citizens, they are always free to emigrate, just as a doctor is free to leave the medical profession! Or maybe we should just deny freedom of conscience to immigrants, because they chose to come to their new country in the first place. Just as one does not have to become a doctor, one does not have to immigrate either. Such consequences of Giubilini and Savulescu’s position are absurd. If they are right, one might as well tear up the U.N. Declaration and every convention that repeats its endorsement of freedom of conscience.

Both sides of this debate accept that when you join a professional body, you sign up to certain rules. These rules can qualify a person’s civil rights, often significantly. The question in dispute, however, is what. What, exactly, does a health care professional sign up to? In my view, and that of the supporters of medical conscience rights, he does not sign up to being compelled to violate his sincerely and deeply held moral principles just because the state says so, or the rules of the professional body in question.

Moreover, relying on codes is normally not a good way of making ethical arguments: codes can always be dropped, adjusted, updated. And they normally refer to general principles whose application to actual cases requires taking other values into account.

Reply: There is nothing magical in my use of the word ‘code’. I could as well have said ‘system’, ‘body of principles’, or some such. I appeal to this for important reasons to which I will advert later on. Ethical arguments, like all arguments, depend on systematic reasoning. The application of general principles to specific cases is often subtle and difficult – a problem for everyone, philosopher or not, defender of conscience or opponent. Yes, people’s principles sometimes change, but what of it? Should we deny freedom of religion to a religious believer because one day they might become an atheist? Should we deny a person’s freedom to speak their left-wing views because one day they might become a conservative?

  1. In health care, conscience plays an essential role in the professional judgment – often subtle and delicate – that practitioners must exercise in their daily work. If health care workers are not to be reduced to mere functionaries (of the state, of the patient, of the legal system), they must be free to exercise their professional judgment and to allow their consciences to inform that judgment. This freedom of professional judgment informed by conscience must translate into the freedom not to be involved in certain activities or practices to which there is a conscientious objection.

OUR REPLY: We agree that “ conscience plays an essential role in the professional judgment – often subtle and delicate – that practitioners must exercise in their daily work.” Indeed medical practitioners, or anyone, must not be reduced to “mere functionaries”. However, one of us has argued that this role is fulfilled by doctors forming all things considered value judgements about what patients should do, and engaging patients in a free and equal dialogue about these (Savulescu 1995Savulescu 1997) : if at the end of such a dialogue, where the doctor treats the patient as an equal whose moral view is deserving of respect, the patient opts for a course of action that is legal and within the scope of the doctor’s practice, and consistent with distributive justice, then the doctor should provide it, even if she disagrees ethically. That is what it is to be a professional.

Reply: This description of the doctor-patient relationship does not represent a ‘free and equal’ exchange. On the contrary, according to the authors, dialogue must be followed by the doctor’s doing just what the patient asks, even if (I presume) the patient can get the legal procedure or service they want in a timely and effective manner from some other doctor who does not have a conscientious objection to providing it. For all the high-minded talk of equality and respect, this a relationship of employer to functionary. What about the doctor’s moral view: is it too deserving of respect? How is that respect supposed to be manifested, according to Giubilini and Savulescu? This is not about mere ethical disagreement. It is about professional and personal integrity.

But it could be argued that even this position gives too much power to the doctor and his or her conscience, at least according to certain understandings of conscience. Indeed, that one’s professional judgments require one to consult one’s conscience (e.g. Sulmasy 2017) is a problematic statement, because a lot depends on what one means by ‘conscience’. On some understandings of conscience, the statement is plainly false. Philosophically, the concept of ‘conscience’ has a variety of meanings and a complex history (one of us has provided an account here). Not all of them have relevance for professional judgments. For instance, in the Christian tradition ‘conscience’ is sometimes understood as the (imperfect) faculty through which we discover the law of God within our heart. Generally speaking, the voice of God is not essential to professional judgments – unless you are a minister of a Church – because what is good and bad professional judgement cannot be determined by religion. In the case of medicine, doctors and patients might have different religious views, and religious prescriptions can differ from commonly accepted standards of good medical practice (McConnell 2018).

Reply: I agree – doctors and patients might have different religious views, and thereby different ethical views about the right thing to do. Or one might be a religious believer and the other not, or perhaps neither will be religious believers. They will still have ethical views, will they not? In which case disagreements can arise and this is precisely why freedom of conscience for the medical professional must be legally recognised, so that they are not compelled by the patient, the state, or their professional body, to act in ways they sincerely consider to be a serious violation of deeply held moral principles. Everyone has their ‘red lines’. Doctors are no exception.

Nonetheless, we remain “agnostic” as to whether religious values should enter the doctor-patient relationship. Provided the doctor is willing to express but not enforce his or her values, and respect the patient’s own values, such value pluralism is a justifiable part of liberal society.

Reply: The conscience debate is not essentially about the place of religious belief in the doctor-patient relationship. True, many recent disputes have involved conscientious objections deriving from religious belief, but such a dispute need have no religious basis whatsoever. I and those who agree with me often speak interchangeably of freedom of religion and freedom of conscience, with one doing duty for the other even though freedom of conscience includes, but is not co-extensive with, aspects of freedom of religion. Freedom of conscience and religion as an overarching freedom is spoken about often, as by the Canadian Charter of Rights and Freedoms, the International Covenant on Civil and Political Rights, the EU Charter of Fundamental Rights, among many other treaties, conventions, and legal judgments.

In short, it is highly misleading to frame the medical conscience debate as one about the place of religion in medicine. It is also a misrepresentation of the debate to talk about a doctor’s ‘enforcing their values’ on anyone. As long as the patient has full and fair access to all legally available treatments and services , where is the enforcement? The right to legal treatment does not entail the right to obtain it from any particular person.

  1. The rights of religion and conscience are, however, not absolute. Article 29 of the U.N. Declaration (with similar provisions elsewhere) states: ‘In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.’

OUR REPLY: We agree on this principle. However, this formulation is quite vague.. For what exactly are the “just requirements of morality” against freedom of conscience? A moral obligation to act according to the professional standards of one’s chosen profession might count as a just requirement of morality against a claim to freedom of conscience. If it didn’t, then many professions would turn into mere anarchy.

Reply: I do not suggest for a moment that international conventions and declarations are sufficiently precise to guide the law in liberal societies without plenty of further work. I take them to be no more than highly important frameworks for basic rights in such societies. (I leave aside societies without a liberal framework, where the debate over rights would involve a host of other issues.) True, the formulations are vague in some respects, as is every statute ever enacted and every legal judgment handed down by a court. We can say the same about freedom of speech, of the press, of assembly, freedom from torture, slavery, and all other basic rights. Why single out freedom of conscience?

More importantly, the persistent appeal to ‘professional standards’ strikes me as potentially question-begging. After all, what if the standards included the right to conscientious objection? The British Medical Association’s own handbook of ethics and law, Medical Ethics Today (3rd edition, 2012, p.33) states: ‘Doctors have rights to their own moral views and can opt out of some lawful procedures, if this would not endanger patients.’ Read in the context of other remarks by the BMA, this right to opt out seems limited only to abortion, fertility treatment, and some end-of-life decisions. (By contrast, the view of the General Medical Council appears more liberal.) Although I disagree with the precise formulation and the BMA’s interpretation of the situation, my point is that appealing to professional standards threatens to beg the very question of whether CO should be part of those standards in the first place. Standards are a good indicator of general thinking by medical professionals about the nature of their job, but they cannot take the place of an argument.

An ethical vegetarian waitress might want to be exempted from serving meat without losing her job; as a matter of fact, a significant proportion of Muslim medical students want to be exempted from medically inspecting patients of the opposite sex (36%) or intoxicated with recreational drugs (18.5%), in the name of their freedom of conscience (Strickland 2012).

Reply: Intuitions may differ, but none of this strikes me as particularly problematic. Fortunately for the vegetarian waitress, a thriving private market in restaurants means she can find the perfect establishment to work in. Unfortunately for the health care worker who is employed by a socialist medical system such as we have in the UK, the choice of where to work is a much more serious problem.

When assessed against professional standards and expectations, these types of objections are all equivalent: there is no reason to think that some (say, religious conscientious objection to abortion) have a stronger claim than others (say, conscientious objection to serving meat).

Reply: Perhaps, but my concern is health care and the integrity of the medical profession.

It is important to note that the ‘just requirements of morality’ are not confined to respecting other people’s rights and liberties. It might still be wrong to fail to comply with professional standards and expectations even if other people’s rights are not violated (for instance because a woman to whom a doctor denies an abortion can easily get the same medical service elsewhere, or because a customer to whom a waitress denies a meat dish can get it from another waiter).

Reply: It may be wrong to fail to comply in this way but it can never be merely because a person is acting on their own right conscientiously to object. As I say in my Declaration: ‘The rights of others…are not violated merely because they cannot be enforced against a person exercising their freedom of conscience and religion – for otherwise this freedom itself would be meaningless.’

One might appeal, for instance, to a duty of fairness towards one’s employer (including when the employer is the state) and towards one’s colleagues, e.g. a duty to perform the same professional activities as any other colleague who works on the same salary.

Reply: This strikes me as not very convincing. If fairness to one’s employer means doing whatever one’s employer requires under penalty, irrespective of morality, justice, or integrity, then one truly is a mere functionary – of the state, if this is one’s employer. If we allow conscience, in some cases, to trump state-imposed obligations even in wartime, how could it be logical to deny it in peacetime?

A similar point applies to fairness in respect of one’s colleagues. Does ‘the same professional duties’ mean performing every single kind of activity as a prerequisite for being paid the same? If so, then millions of employees are being unfair to millions of their colleagues every day of the working week; this is an implausible result.

  1. We concur with the U.N. and other international bodies and conventions that freedom of conscience and religion should not violate the legally recognised rights of others and that the freedom can be limited by the just requirements of morality. This applies both to direct participation in various practices and to assistance or co-operation with them, such as facilitating them by means of referral to another practitioner.

OUR REPLY: We agree with this point, with the proviso we made in our response to point 4 about what constitutes a ‘just requirement of morality’. As said, it is not just about protecting other people’s rights.

  1. The rights of others, however, are not violated merely because they cannot be enforced against a person exercising their freedom of conscience and religion – for otherwise this freedom itself would be meaningless.

OUR REPLY: Nobody is forcing a conscientious objector to enter medicine or to continue in it.

Reply: See my earlier remarks, including what I said about freedom to emigrate. This oft-repeated statement is of mere rhetorical force; it lacks logical force.

If conscience is important, one will incur significant costs to protect it. Conscientious objectors to conscription to war were incarcerated or experimented upon.

Reply: Many were badly mistreated, to be sure. I have no doubt some were insincere cowards. Not all were. Many others belonged to religious denominations with centuries of pacifist tradition behind them. Thousands took up alternative work, such as medical care for the wounded (an obvious choice), agriculture for the war effort, construction, and so on.

Today’s conscientious objectors pay no such costs. A compromise position would be to deny conscientious objectors entry into medical specialties involving their objection (Savulescu and Schuklenk 2017). The cost would be minimal – choosing another career or even branch of medicine. But today conscientious objectors want to incur no cost for them imposing burdens on others.

Reply: The proposed ‘compromise’ seems to me more like a trouncing. Why should conscientious objectors have to avoid an entire specialty because of concerns about one kind of procedure or service within it? A speciality can of course be so narrow that an objector would not be treated unfairly were they required to avoid that particular speciality – say transgender surgery or cosmetic surgery purely for enhancement. If they objected to such procedures in general they would not expect the relevant speciality to be open to them. But what about midwifery, or obstetrics and gynaecology, or sports medicine, or neurology? These are broad specialties with many kinds of procedure and treatment within them. Are we to say that if a neurologist objected to administering transcranial direct current stimulation for the purpose of (alleged) cognitive enhancement, they should leave neurology altogether? Or that an aspiring neurologist should be barred from that discipline because of advance refusal on ethical grounds to carry out such a procedure? There may be no pressing case involving this particular example at the moment, but my refrain is that it is only a matter of time before conscience issues start troubling large numbers of health care workers across a multitude of disciplines.

Freedom of conscience and religion is not an absolute right; however, in this point 6 of the declaration, neither a duty to abide by standards of good professional practice within a freely chosen profession nor a duty to respect other people’s right to health care are taken to be strong enough to outweigh an alleged right to freedom of conscience and religion in health care provision.

Reply: This is not what point 6 of the Declaration says. The point says that a person cannot complain that their health care rights are violated merely because a health care worker refuses on conscience grounds to provide what the person wants. Whether health care rights are violated depends on the case at hand. My view, as per point 12, is that ‘[t]he strong presumption in favour of conscientious objection would be rebutted if it could be shown that the act or practice in question were such that no reasonable person could object to its performance in the particular health care circumstances at hand.’ In other words, a putative conscientious objection can be unreasonable. It might also be insincere, or for some other reason not rise to the level of genuine objection on grounds of conscience.

In a country like Italy with very high rates of conscientious objection to abortion – with peaks of 80% in certain regions – each conscientious objector poses a serious risk to the health of women seeking abortion and to their right to access safe and legal abortion because it is very difficult for a woman to find a doctor willing to perform the abortion (see e.g Minerva 2015);

Reply: I disagree with this reading of the Italian situation. Exact figures are hard to come by, but from what I can discern, the abortion rate in Italy is about 1%, around 100k per year. It has been steady since 2004 or in slight decline in a country whose population has barely increased in over a decade. The rate is comparable to Spain and Greece, two natural comparators. It does not look on the face of it as though Italian women are having serious trouble getting access to abortion. There has been a decline in the ratio of abortions to live births since 1981, from about 1/3 to 1/5, but there are likely to be many factors influencing that, including cultural and religious, and a recognition of Italy’s demographic problems. No doubt conscientious objection plays a part, and I do not mean to suggest that Italian women have no trouble accessing abortion in every region, town, city, in every situation. All I am suggesting, based on the evidence, is that abortion seems pretty easy to get.

besides, doctors who are not conscientious objectors are overburdened for having to perform a disproportionate amount of abortions. In Oderberg’s view, these considerations are irrelevant because the alleged right to conscientious objection would trump such considerations.

Reply: It is up to the state, or the market, or whichever system regulates health care provision, to ensure that no patient is denied their right to legally available treatment. It is not for conscientious objectors to fix this problem any more than it is the job of an accused exercising his right to remain silent to ensure that the prosecution gets its evidence in some other way, or of a baker who objects to selling a cake with a pro-gay marriage slogan on it to ensure that the customer can obtain their cake from another retailer.

So one cannot help but wonder what would actually constitute, in Oderberg’s mind, an appropriate constraint on an alleged right to freedom of conscience in health care provision by health care professionals. Absent a valid answer, point 6 implies that this declaration takes freedom of conscience or religion to be absolute rights, which they are not.

Reply: Point 12 of the Declaration answers this very question, albeit in a skeleton fashion. I continue to call on the UK and other parliaments, and the courts, to develop a statutory and judicial framework for drawing the appropriate boundary between freedom of medical conscience and the right to safe and legal treatment.

  1. Moreover, the ‘just requirements of morality’ are precisely what are in dispute in a case of conscientious objection.

OUR REPLY: we agree: this is precisely the point we made above in our reply to point 4. The fact that people disagree about what the just requirements of morality are, however, does not imply that people should be free to stick to their own conscience. We will never get to agree on many substantial ethical issues, but disagreement does not give people a free pass to behave as they like in any sphere of public life, including professional life.

Reply: There are two non sequiturs in this paragraph. First, it does not follow from ethical disagreement simpliciter that people should be ‘free to stick’ to their own conscience. I have never claimed that people should be ‘free to stick’ to their own conscience, as though this was an unqualified, ‘come what may’ right. Nor am I deducing freedom of conscience from mere ethical disagreement. Rather, my point is that in a professedly liberal, tolerant, pluralistic, diverse society, there is no single ethical system imposed by the state; or, rather, there must not be. The state has no right in such a society either to impose an ethical code upon doctors in the state sector, nor by regulation of the private market. Imposing an ethical code means conscience goes out of the window, and doctors become mere functionaries of the state.

Secondly, it does not follow from ethical disagreement, and I have never argued, that disagreement gives people a ‘free pass to behave as they like’. That would be crazy. The right to medical conscience must be carefully legislated and regulated, with various hedges built in, and a developing jurisprudence is required to give it consistent and detailed shape over time.

  1. Furthermore, in a liberal, democratic society the state may not play favourites by choosing one system of morality to trump all others no matter what objections of conscience are made against it. Conscientious objectors must not be silenced or marginalised merely because of their unwillingness to participate in activities to which they object.

OUR REPLY: Choosing one system of morality over others in the regulation of professional requirements is indeed permissible and necessary. We should not let doctors refuse to examine patients of the opposite sex, as 36% of Muslim medical students in the UK would like to be allowed to do (Strickland 2012), just because their religion or any other value proscribes it.

Reply: I can’t say I find such a refusal particularly problematic. There can certainly be reasonable disagreement over whether examination of a patient by someone of the opposite sex is ethically appropriate. I take no sides; I just don’t see the problem.

The state is not impermissibly ‘playing favourites’ if it merely requires professionals to abide by the recognized and socially accepted standards of good professional practice of a freely chosen profession.

Reply: It surely is playing favourites, if the state’s standards, or those of the profession, ride roughshod over any dissenting point of view. If I might indulge in ad hominism for a moment: I find it hard to believe the authors would be saying this if the ‘recognized and socially accepted standards of good professional practice’ were unabashedly contrary to what the authors believe those standards should be. Freedom of conscience for dissenters would, I surmise, be at the top of their policy agenda.

This point 8 relies on the false assumption that all systems of morality are on equal footing for the purpose of any policy making in a secular state: according to this point, as long as there is someone that holds a certain moral or religious view, that moral view should be considered on a par with any other moral view when it comes to deciding what people can and cannot do, or else the state would be ‘playing favourites’.

Reply: I simply do not say this. I allow that there can unreasonable appeals to conscience. What is reasonable has to be settled by parliament and the courts, with plenty of room for lobbying and argument on all sides. If the appeal is reasonable, no liberal state can play favourites and compel obedience contrary to conscience.

This is radical moral relativism and a mistake.

Reply: Lest there be any misapprehension, I am no moral relativist. But as far as I am concerned, in a liberal and pluralistic society one seeks to effect changes in the law through the usual means of lobbying and persuasion, and of course the ballot box. One does not do it by trampling on freedom of conscience. This no more implies moral relativism than freedom of speech in a liberal society implies that all things spoken are equally plausible.

For many professions, there will be people who disagree ethically with some of its professional standards and requirements. Creationists will disagree with the professional requirement on teachers to teach evolution; racists will disagree with the professional requirement on doctors to treat patients of different ethnicities equally; vegetarians will disagree with professional requirements on waiting staff to serve meat; pro-life people will disagree with professional requirements on certain doctors to perform abortions.

Reply: With a properly worked out set of laws and jurisprudence on freedom of conscience, there will be a way of handling all such cases – not always in a fashion that make all sides happy, but in a way that respects basic rights. In any case, since the topic at hand is health care, it is best to stick with it. As far as abortion is concerned, conscience is protected to some degree in most jurisdictions. In my view it does not go far enough, since cooperation is not taken into account. The authors think this is simply wrong, and I disagree. But appealing to allegedly absurd consequences in other professions does not make their case. They seem to think that no reasonable consensus can be reached on controversial cases, and that parliaments or courts should not even try to develop it.

The state would impermissibly play favourites if it excluded people from the public discussion about what represents good professional standard and policy and about changing professional standards and policies. By including people in this discussion and giving voice to their different views, the state discharges its obligation to be impartial. But it cannot allow everyone to object to everything merely on the basis of their personal moral views, just for the sake of treating all moral views equally.

Reply: Again, this is a mischaracterisation of my position. I cannot see how anyone reading my Declaration impartially, and taking my words at face value, could ever conclude that my view is that I allow ‘everyone to object to everything merely on the basis of their personal moral views’. Like the authors, I see this as a recipe for anarchy. Boundaries have to be set, as they are for all civil rights. One might as well say, ‘we cannot allow everyone to say anything merely based on their personal views’, or ‘we cannot allow everyone to join whatever organisation they like’. Freedom of speech and of assembly need boundaries and have them in every liberal society that has ever existed. The same should apply to freedom of conscience. Moreover, every person is free to disapprove of anyone else’s associations, or speech, or conscientious objections. In that sense, we cannot and do not treat all moral views equally. The law of a liberal state should not, however, impose a single code of ethical conduct on health care workers (or any other citizen) whatever their concerns, as long as those concerns meet the threshold for conscientious objection. It is the threshold that needs to be debated.

Once the laws are passed following the appropriate debate, we should abide by the umpire’s decision. Thus, a state may and indeed ought to choose certain systems of morality over others for the purposes of regulating different spheres of public life. Racist systems of morality ought to be excluded from any sphere of public life. Religious systems of morality or secular systems of morality that are at odds with the professional standards of certain legal and socially accepted professions ought to be excluded from such professions. And so on.

Reply: To repeat, conscientious objection in health care must meet a reasonableness test. A system of morality that treats some people as inferior merely because of the colour of their skin is one that no reasonable person should agree with. There will, as I have emphasised, always be boundaries and limitations, as with all basic rights. It is not a game, as though what matter is respecting the umpire’s decision. Such an attitude positively opens the way to arbitrary rule, with the state as umpire ‘deciding’ and everyone else, including doctors, falling in line no matter what. In any case, the question is precisely what are the standards by which any ‘umpiring’ should take place. These standards, I submit, should change.

  1. In particular, the liberal, democratic state may not dictate that a secular, i.e. non-religious, system of morality trumps the rights of religious believers, or that one particular moral system trumps the rights of those with sincere, deeply held conscientious objections to some of its principles or requirements.

OUR REPLY: Again, this is question-begging: it all depends on whether certain things do constitute “rights” of religious believers. We have said that conscientious objection to activities that are consistent with good professional standards of a freely chosen profession is not a right that simply follows from a general principle of ‘freedom of conscience’. Liberal democratic states are secular states, and secular principles trump freedom of religion in many cases, and rightly so. For instance, in most countries Jehovah’s Witnesses cannot appeal to their freedom of religion to deny blood transfusions to their children: in a secular society, the best interest of children, which is a secular value, trumps religious freedom, and rightly so. Since, luckily, we live in secular societies, professional standards of good practice should be informed by secular values, and this does not violate any right to religious freedom.

Reply: I have never thought of the best interests of children as being a uniquely secular value. I have always assumed it to be at the core of all religions. It does not, however, entail that one be allowed, for example, to commit a murder to save a child, or torture an innocent person to save a child. Even the best interests of children are qualified. That said, without going into the details of why Jehovah’s Witnesses believe what they do about blood transfusions, it seems on the face of it unreasonable. In other words, for conscientious objection to work in the face of severe disagreement between the relevant parties, there must be room for reasonable disagreement, within a statutory and judicial framework, over whether an objection can be maintained. So it is not part of my position (though other defenders of medical conscience may disagree) that any objection based on one’s religion or ethical code will ipso facto pass the test.

To take another example, it is an integral part of my position that a conscientious objector cannot object to cooperation with an act they deem to violate their principles if their cooperation is sufficiently remote and non-implicating. I have argued for this at length in various places. I also do not allow mere disgust or distaste, no matter how prevalent such an attitude to a particular practice may be among a religious group, to be sufficient. Nor would a mere personal interpretation of one’s religious or ethical code be sufficient. There has to be some objective standard whereby a judge could conclude that it was the teaching of one’s religion, or of one’s ethical code (pacifism, for example) that a certain kind of action was wrong. Expert witness evidence would need to be taken in some cases, assuming the case had to go to a court or tribunal. This is all consistent with a presumption in favour of conscience. It is not as though the objector should immediately be on the ‘back foot’, having to justify themselves before the state or their professional body. Procedures need to be in place whereby an apparently sincere and reasonable objection is taken seriously and acted on if there is no obvious or significant concern about any patient’s immediate well being. Only if there is a challenge should the objection be formally tested in a court or tribunal.

The right to practice one’s religion implies freedom to believe and to practice that religion in one’s own life, but not to impose those religious values on others in professional roles. It implies the freedom to choose from a reasonable range of jobs and professions; it does not imply the freedom to choose any job or profession and modify it as one sees fit.

Reply: No defender of conscientious objection is suggesting that anyone be allowed to ‘impose’ anything on anyone else. On the contrary, by denying conscientious objection, critics such as Giubilini and Savulescu want to impose their own morality and beliefs on practitioners for whom the relevant activities are contrary to their sincerely and deeply held religious and/or ethical principles. They wish to compel others to act in matters contrary to conscience. Objectors merely wish not to be involved.

As for the ‘freedom to choose from a reasonable range of jobs and professions’, this is simply to relegate religious belief and practice to second-class status in a liberal society – the sort of virtual persecution one sees in professedly secular states such as China. Perhaps, given the anti-religious bent presupposed by such an attitude, critics of medical conscience really would like liberal states to become professedly secular, where religion was at best tolerated as a manageable irritation. I do not see this as a desirable direction in which to move.

The law does not require people to participate in practice they consider morally objectionable. The law does not require a person to become a GP and prescribe contraceptives. One is totally free not to become a GP. Thus, we could grant conscientious objection to those already in professions which at some point change their professional standards, but there is no reason to admit people into professions requiring practices they do not wish to perform. This does not violate any fundamental freedom and it is necessary for social coordination.

Reply: Once again, the ‘no one forced you to become a doctor’ response begs the very question at issue: what should the standards of the profession be? Should conscientious objection be allowed in the first place? Giubilini and Savulescu accuse me of pandering to moral relativism – a false allegation – yet how evidently relativistic is the idea that we should simply take the professional standards in medicine for what they are, with no further criticism? Now perhaps they are not making such a sweeping claim. Perhaps their claim is that, to the extent that the standards do not allow conscientious objection, they should be taken at face value. But this would be mere cherry-picking: accept the standards as binding when they suit your case, otherwise – if, say, they disallowed a practice that the critics supported – subject them to a critique.

Furthermore, what are the standards? When it comes to the rights of conscience, the guidelines of the General Medical Council and of the Royal College of General Practitioners are on the face of it more liberal than those of the British Medical Association and of the Nursing and Midwifery Council. It will be rare to find a single consensus on health care standards, especially when it comes to the very issues that defenders of conscience have in mind – where moral views diverge, sometimes heatedly but often quite reasonably. The appeal to standards is not as persuasive as Giubilini and Savulescu think it is.

  1. Freedom of conscience and religion in a liberal society does not entail that ‘anything goes’. A health care worker should not be able to find shelter under freedom of conscience and religion merely by claiming it. For the protection to apply, a person must have a deeply held, sincere adherence to a tenet or doctrine of their code of ethics or religion that forbids – expressly or by necessary implication – the kind of act to which they object.

OUR REPLY: This point is undermined by what we have said above. It proceeds from the assumption that there is a right to freedom of conscience in the fulfilment of one’s professional duties. This still requires justification. In any case, it would be almost impossible in practice to assess whether one’s objection is based on sincere and deeply held beliefs or is just a matter of opportunism (e.g. the desire to avoid unpleasant activities or, say, to please a Catholic director of a hospital so as to further one’s career).

Reply: I do not understand the scepticism. Should we be similarly dismissive of hopes for reasonable assessment of cases when it comes to free speech or freedom of assembly? There will always be hard cases, but hard cases, as they saying goes, make bad law. Courts are generally pretty good at weeding out vexatious litigants, insincere or lying claimants, false witnesses, and so on. They are not perfect, but they are the best we have. To decline to apply normal judicial procedure to conscience cases is, again, to cherry-pick.

  1. Moreover, the relevant religious or ethical code must be one that has current or historic popular acceptance across some significant portion of the society in which the conscientious objector resides, or in some other society where the code is readily identifiable.

OUR REPLY: This point is, from an ethical standpoint, completely arbitrary and discriminatory towards those who do not subscribe to any religion or that belong to minority moral groups, or who have moral views that others do not share.

Reply: Where is any of this in that clause? On the contrary, I explicitly say ‘religious or ethical’, and have repeatedly stressed that those who do not ‘subscribe to any religion’ are equally within the scope of the Declaration. Nor have I said anything about ‘minority moral groups’ or ‘views that others do not share’. All I am proposing is that there has to be some general code or other, which might not be particularly detailed or widespread. The entire point of this clause is not to promote arbitrariness but to minimise it, by excluding claims to conscience that consist of no more than ‘I don’t like X’ or ‘I don’t want to do X’ or even ‘I think X is wrong’. The claimant has to do more than that to make out a reasonable case.

Conscience is a reflective faculty for discerning right and wrong. It is not mere intuition or feeling. It needn’t be deeply analytical; you don’t have to be a professional ethicist to avail yourself of conscience rights in the public square. But you need to have some sort of reasoned position that you can at least articulate in outline: ‘I am a pacifist, and therefore do not believe in taking life’, ‘I am an Evangelical Christian and am opposed to abortion’, ‘I am against extreme body modification because my faith teaches me that self-mutilation is sinful’, or some such. And this cannot be an idiosyncratic interpretation of one’s code. There has to be some objective standard whereby a tribunal could determine that a certain activity, either expressly or by necessary implication, was forbidden. A claimant does not need a papal ex cathedra statement or equivalent. If a significant portion of the rabbinate from one’s Jewish denomination all said the same thing, or if the same principle was expressed in numerous writings on pacifism, or Lutheranism, or Buddhism, and so on – that would, in my view, be sufficient to make out the case.

Why should it matter how many people share my own moral views for my right to freedom of conscience? We cannot privilege certain religious or ethical views in defining individual rights to freedom of conscience just because those views happen to be popular or have historically been predominant (often thanks to very objectionable strategies and relations of power). Historically, slavery, racism and sexism were supported by large sections of society but these should not serve as a basis for ethical practice.

Reply: By ‘popular’ I do not mean majority or predominant. All I mean is that in the objector’s own society, or in some society that reflects the views of the objector in some significant, relatively identifiable way, one can identify teachings from which the objector derives their objection. Otherwise the way to arbitrary and ungrounded objections is straight and wide.

The popularity of a certain ethical or religious code is normally not taken to be as a valid criterion for the definition of a right to freedom of conscience. As seen above, many Muslim doctors would like to be able to object to medically inspecting people intoxicated by recreational drugs or of the opposite sex; this is unacceptable, but according to this standard, this is not different from a Catholic doctor who doesn’t want to perform an abortion, since in both cases the religious code is one that has current popular acceptance across a significant portion of some society.

Reply: Exactly. These both seem to me to be paradigm cases of CO where identifiable teaching is available. Again, by ‘popular’ I am not suggesting it is a ‘numbers game’. Freedom of conscience applies as much to Amish or Baha’i as to Catholics or Muslims in a liberal and pluralistic society.

And the same applies, for instance, to the creationist teacher who would like to be able to object to teaching evolution, or to the vegetarian waitress who would like to be able to object to serve meat. Vegetarians account for about 10% of the population in Europe, where vegetarianism can be considered a lifestyle choice rather than a necessity: undoubtedly, this makes vegetarianism an ethical code with popular acceptance across a significant portion of society. Still – to remain within the medical context – a vegetarian pharmacist should not be allowed to deny patients medications using animal products based on her own particular values.

Reply: As for the ‘creationist’ teacher, I reserve judgment given that my focus is health care. As to the vegetarian pharmacist, I don’t see why they should not receive an accommodation in such a case.

  1. The strong presumption in favour of conscientious objection would be rebutted if it could be shown that the act or practice in question were such that no reasonable person could object to its performance in the particular health care circumstances at hand.

OUR REPLY: This point does not add anything because the concept of ‘reasonable’ here deployed is very unclear, as is in general in the academic debate on conscientious objection (see e.g. Marsh 2014). Oderberg is trying to connect the debate on conscientious objection to the debate about toleration of different comprehensive doctrines in a context of reasonable disagreement, but this does not take us very far. First of all, there is a general problem about whether, by any standard of ‘reasonableness’, it is reasonable to allow any person to object to any professional obligation as long as the objection is taken to be reasonable (and sincerely held, and having currency among a large portion of society): that reasonable objections within a freely chosen profession should be accommodated might itself not be a reasonable principle; toleration of reasonable views does not need to go that far.

Reply: The authors restate their opposition to the reasonableness of allowing objections to professional obligations. I repeat my disagreement with them. I also repeat my charge that at the risk of begging the question, the authors cannot put aside the concern as to just what those professional objections are and should be.

I want to see a debate about this at the highest levels – by parliament, the major medical bodies, and via litigation. It is a scandal that the major civil rights, including freedom of conscience and for that matter freedom of speech, entrenched for decades in international law, have barely been tested in the UK legal system. To digress slightly, the ‘witch scare’ over so-called ‘hate speech’, which virtually amounts to ‘thought crimes’, has not been met by systematic parliamentary and judicial analysis so as to delimit the very boundaries of what is legal. I submit that the heated debate over conscience in medicine is in desperate need of a proper legislative and judicial framework, with politicians and judges exercising their minds over just what the scope of conscientious objection ought to be, given the foundational status of freedom of conscience in the many international instruments to which the UK is a party.

Secondly, and importantly, even if we accept that principle, what is ‘reasonable’? In one broad sense of ‘reasonable’, you can find at least one reasonable person who would object to pretty much any activity that falls within professional standards and expectations: abortion, vaccination, antibiotic prescription, inspecting patients intoxicated by recreational drugs, and so on. Appealing to the idea of reasonable disagreement to settle conflicts about different comprehensive doctrines is quite common in political philosophy, most notably in John Rawls’ Political Liberalism, and in the debate on CO as well (see eg Card 2007 and 2014), but it is very unclear what ‘reasonable’ means. The fact that John Rawls himself was reluctant to provide a definition of ‘reasonable’ and more often relied on what he took to be an intuitive sense of the term is quite telling of how fishy the concept is.

Reply: I take all of these points, and do not pretend for a minute that reasonableness gives you a decision procedure for working out which conscientious objections to accommodate. I am completely ‘up front’ in my view that, given the lack of a superior alternative, we have to hand contested conscience cases over to the courts or to specialist tribunals. But first we need a statutory framework, and we don’t even have that.

In my book Opting Out I propose the following key clause in any putative Rights of Conscience in Health Care Act: ‘no individual, whether through their own agency or the agency of a corporation or other legally recognised body, shall be required to provide, participate in, cooperate with, or refer for, any goods or services of a health-care-related nature contrary to that individual’s conscientious beliefs, religious beliefs or moral convictions’. Consider also Illinois’ Health Care Right of Conscience Act, section 4: ‘No physician or health care personnel shall be civilly or criminally liable to any person, estate, public or private entity or public official by reason of his or her refusal to perform, assist, counsel, suggest, recommend, refer or participate in any way in any particular form of health care service which is contrary to the conscience of such physician or health care personnel.’

As for that catch-all term ‘reasonable’, the simple fact is that common law is replete with ‘terms of art’ such as ‘negligent’, ‘cause’, ‘foreseeable’, ‘reasonable’, and the like. What the law calls ‘reasonableness tests’ are found everywhere. Rarely if ever do legislators try to define such terms, partly because they are so broad and generic that any definition would, for legal purposes, be itself so wide in scope as to be of little practical use. In addition, the breadth of the terms means that they crop up all over the common law, in just about any kind of tort case you could think of, as well as contract, property, and other areas. Their wide applicability means that a huge range of types of factual situation can be relevant to how those terms are applied, and it is hard to tell in advance how a given term might be employed in a particular case. So, in their wisdom, parliaments leave it to judges to give flesh to the bare bones of these very general legal concepts.

If we were to eliminate all ‘reasonableness tests’ from the law, the legal system would collapse. I am happy for the ‘reasonableness’ buck to stop with the courts.

In any case, we do not even need to go as far as to define reasonability to make our point. What we want – and we assume Oderberg also would want – is to apply the concept of ‘reasonable’ consistently even we assumed that reasonable objections should be accommodated. For instance, we could stipulate that a reasonable moral or religious comprehensive doctrine is one that does not involve any unjust discrimination and that is consistent with a certain degree of liberty of other people (so, for instance moral views that imply some form of sexism or racism are not reasonable and therefore should not be tolerated in liberal societies). But if we accept this broad understanding and we want to apply it consistently, why should we think that conscientious objection to, say, abortion, or contraceptives, or euthanasia, on the basis of religious or ethical reasons is more reasonable than conscientious objection to, say, prescription of antibiotics or vaccination or to medically inspecting patients intoxicated by recreational drugs? If the former is reasonable, then the latter are as well; and if the latter aren’t, then religious or moral opposition to abortion is not reasonable either. But if we are not prepared to allow the latter examples of conscientious objection, why should we allow CO to euthanasia based, say, on the religious beliefs that a our body and our life are not our property but God’s? Unless we resolve these substantial ethical issues, the appeal to the concept of ‘reasonable’ does not seem to take us very far in a justification of conscientious objection in health care. Other conceptions of ‘reasonable’ might be provided, but the burden is on the proponents to show that they allow to pick out just those few cases of conscientious objection that they think should be granted (and not, say, conscientious objection to providing vaccination).

Reply: The authors now seem to be more concerned with the mechanics of reasonable accommodations that with the principle. I agree that there is plenty of work to be done here, both in health care and beyond. Baroness Hale, President of the Supreme Court, has used the very language of ‘reasonable accommodation’ to express her own concerns that a ‘fair balance’ has yet to be struck between competing individual rights, and also between individual rights and those of the community. It was she who gave the Court’s judgment in the Doogan case that the midwives had no protection from being required to carry out various abortion-related actions that violated their religious and ethical beliefs. In her view, a general ‘conscience clause’ may well be needed to achieve the right balance, the implication being that this applies within and beyond health care.

What the UK needs is what it has not yet had – a royal commission of inquiry into the state of freedom of conscience in medicine, a Law Reform Commission investigation, and/or serious debate within Parliament and among the major medical bodies. Baroness O’Loan’s Conscientious Objection (Medical Activities) Bill was the subject of some spirited debate in the Lords earlier in 2018, but is now stuck in Report Stage, with no indication of revival. The vigorous objections raised by some Peers, identical to those raised by Giubilini and Savulescu, were equally vigorously rebutted by the bill’s supporters. The situation has not advanced since then.

I do not pretend to have a magic formula that will enable anyone to ‘pick out just those few cases of conscientious objection that they think should be granted (and not, say, conscientious objection to providing vaccination)’. I also have no formula that neatly delimits the boundaries of freedom of religion in general, freedom of speech, freedom of the media, or freedom of assembly. It is bordering on hypocritical to set a higher standard for freedom of conscience.

There might be substantial moral differences between euthanasia and providing antibiotics or vaccines, but if so, what we need to address is precisely such substantial moral issues. If people think that abortion is morally impermissible, then they should campaign to have it excluded from the domain of what constitutes good medical practice, trying to persuade people on the basis of public reason, and for consistency’s sake they should not take on professions whose recognized standards conflict with their own personal moral standard. If they succeed at showing, through public reason, that abortion is unethical, then the proper policy solution would not be that of allowing abortion and also allowing conscientious objection to abortion – which would presuppose a relativistic moral framework (Giubilini 2014) – but to exclude abortion from the proper scope of medical profession. Thus, as we have argued (Giubilini 2017Savulescu 2006), we should stop focussing on the value of conscience and of freedom of conscience and shift our attention to substantial moral issues to determine what exactly should and should not fall within the proper scope of medicine (or indeed of any other profession)

Reply: I agree completely that opponents of abortion should campaign to have it banned or heavily restricted, opponents of euthanasia should also campaign, as well as critics of human embryo research, and of whichever treatment or procedure one happens to oppose. Opponents do campaign. But this is a distinct issue. It must not be confused with the conscience issue. To say that ‘for consistency’s sake they should not take on professions whose recognized standards conflict with their own personal moral standard’ seems to me bizarre. How is it inconsistent both to oppose procedure X and to campaign for a reasonable accommodation or opt-out where X is legal? If anything, the two positions go hand in hand.

  1. Conscience cases of recent concern nearly all involve beginning and end-of-life activities such as contraception and sterilisation, abortion, assisted suicide, and euthanasia. Reasonable people have serious disagreements over the legitimacy of some or all of these practices, and over whether participation in such activities should be compelled by law.

OUR REPLY: Reasonable people have disagreement also about practices that do not allow conscientious objection, such as vaccination, at least if we take ‘reasonable’ to mean something like “not discriminatory and consistent with other people’s freedoms”, and not something like ‘rational’ or ‘informed by evidence’ (given that religion-based objections are not informed by evidence either).

Reply: I do not mean either of these things. By ‘reasonable disagreement’ all I mean is that a reasonable case can be made out for the impermissibility of the procedure in dispute. But the case, to be a genuine conscience case, has to be grounded in some body of teaching, religious or non-religious. The relevant principles should not be beyond all scrutiny, but there should be a presumption in their favour where the teaching has significant adherence in the way specified earlier. One might add the desirability of an overlap between more than one body of teaching, where procedure X is considered wrong in body of teaching B1 and in B2 and maybe in more. This would add to the case in favour of reasonableness.

In Italy some doctors have been expelled from the national association of medical doctors because of their opposition to vaccines. Vaccination is consistent with recognized professional standards as is abortion, so it is not clear why objecting to vaccination should imply expulsion from the profession and objecting to abortion should constitute a human right.

Reply: I am happy to thrash out the vaccination vs. abortion debate in a separate post as it would take us too far afield to discuss it here. All I will say is that it might well depend on what the opposition to vaccination consists in – all vaccination? Vaccination of children with immature immune systems? Compulsory vaccination? I don’t have a settled view on conscience in vaccinations, but I am glad the authors are thinking about it. This is just the sort of public debate we need to have!

  1. That notwithstanding, it is abundantly clear that freedom of conscience and religion should not be thought of solely, or even primarily, in terms of the practices that happen to be the flashpoints of current controversies.

OUR REPLY: Yes, we agree: if freedom of conscience justifies conscientious objection to abortion or euthanasia, it also justifies conscientious objection to many other practices that are not flashpoints of current controversies, such as IVF. However, for what we have said above, we take this to be a reductio ad absurdum: since we cannot accept that conscientious objection should be justified in cases such IVF or vaccination , we cannot accept the premise that a principle of freedom of conscience justifies conscientious objection to abortion or euthanasia where these practices are taken to be consistent with professional standards.

Reply: As philosophers like to say, one man’s modus ponens is another man’s modus tollens. The authors are worried that legal protection of conscience will lead to a rash of opt-outs, so they oppose it altogether. My view is that cases where the claim to an opt-out is very strong may well imply less obvious opt-outs that are perhaps not as strong but still sufficiently persuasive to require protection. There is no reason to think that parliament or the courts would set up a framework that allowed any and all opt-outs to whatever health care procedure or service was objected to. On the contrary, I would expect any statutory and judicial framework to be pretty tight – not so tight as to shift the entire burden of proof onto the objector, but tight enough to make opt-outs relatively difficult to get without making out a decent case on a balance of probabilities.

  1. Even if one disagreed with conscientious objection to some or all of the practices listed above, one should be concerned that controversies will soon also arise, as they are already beginning to, in cases such as: transgender surgery; extreme cosmetic surgery; various forms of artificial reproduction; cloning; gene editing and other forms of genetic engineering; cognitive enhancement; performance-enhancing drugs in sport and other areas; creation of chimeras; and much more.

OUR REPLY: Yes, and we agree that it might be difficult to determine whether some of them should or should not be considered consistent with good medical practice and included among professional obligations. But for what we have said above, the debate should happen at this level, not at the level of alleged rights to conscientious objection, given that the latter would be open to all the problems we have raised so far. Patients should not be held hostage to the values of an individual doctor, especially when that doctor has a monopoly power over the patient’s health or life.

Reply: The debate needs to be had at all levels, including over professional standards as to the procedures themselves and standards as to the scope of professional obligations. We need parliament involved, and the courts, and think tanks, and the major professional bodies. Otherwise we will sleepwalk into a doctor’s nightmare, where professional and moral integrity is lost to the coercive power of the state. At the very least, many competent, skilled, good-willed members of the profession will find themselves marginalised and hounded out of their chosen careers, just as happened to the midwives Doogan and Wood. This cannot be tolerated in a liberal and pluralistic society.

  1. We will continue to see the list of controversial practices and activities increase at speed due to advances in biotechnology. If now is not the time to come out in strong support of freedom of conscience and religion in health care, we do not know when is.

OUR REPLY: We think this is not the time to come out in support of conscientious objection. This is the time to discuss whether and which of these new controversial practices should be part of the proper scope of medicine, and in what circumstances, in a rational, informed public discourse.

Reply: If that is the correct view, it follows logically that it will never be the time to come out in support of conscientious objection. For there will always be new developments in medicine to debate, and they will only increase in number, which means increasing levels of controversy over their use. Now, I submit, is the best time to have the public debate we desperately need, and to get a legal framework in place.

  1. Even if you feel sanguine about the controversies either actual or on the immediate horizon, you should be seriously concerned about what is over that horizon. If you are not prepared to make a stand now, whatever your opinion about this or that particular issue, then when the time comes that your own individual conscience is under threat, it will probably be too late. Who will be there, at that time, to come to your aid?

OUR REPLY: Reasoning ethically implies adopting an impartial, disinterested perspective. Whether conscientious objection in health care should be allowed is an ethical issue and, as such, should be discussed from an impartial point of view. The conclusion we reach should be valid regardless of who it is whose conscience will be under threat. If it was our conscience to be ‘under threat’ in the same way in which Oderberg thinks that the conscience of doctors required to perform abortions is ‘under threat’, we would still say that the ethical thing to do would be for us, or for anyone else, to choose a different profession.

Reply: I agree that we must be impartial and disinterested. This is the very tenor of my case for conscientious objection. With a legal framework in place, no doubt I myself will disagree with some of the opt-outs handed down by the courts or tribunals. But this is a price well worth paying to protect one of our fundamental freedoms. I do not want to see doctors forced to choose between their consciences and their careers, especially given the amount of public service they would continue to do were their consciences accommodated. Refusal to accommodate a basic civil right, with the consequent loss to public health, would give us the worst of all worlds.

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2 Responses to Response from David S. Oderberg to “Against Conscientious Objection In Health Care: A Counterdeclaration And Reply To Oderberg”

  • Keith Tayler says:

    I am in broad agreement with your position and am particularly supportive of your attempts to broaden the discussion beyond the ‘big’ issues of abortion and euthanasia which Savulescu and Giublini use. They also direct their argument to a somewhat hierarchical medical system where the problem of CO is for the doctors and members of monopoly professions at the top. It appears to be a given that those further down the hierarchy either have no COs or if they do they can be ignored. This again simplifies the problem of CO because it does not address real world situations, which are far more complex than their description of a few doctors having COs to abortion and euthanasia. As Onora O’Niell pointed out in ‘Abstraction, Idealization and the Ideology of Ethics’, (Moral Philosophy and Contemporary Problems, 1982), when doing applied ethics we must be particularly attentive to the description of the topics and human situations, for if we are not applied ethics ‘becomes hostage to local ideology’ and is no ‘more than the scholasticism of a liberal tradition’.

    Of course it might be that the ‘non-professional’ healthcare workers are ignored because they are believed to be already working in a system where they are not permitted to have medical conscience rights. There is some truth to this, but fortunately there has been some slow progress in a few areas where healthcare workers’ ethical concerns have been listen to which has improved clinical practice and care. Having worked in large psychiatric hospitals in the 1970s and been a CO whistle-blower, I shudder at the thought of a return to the ethical and intellectual straightjacket of those days.

    We might think that objecting to the brutal treatment of patients could not be viewed as being a CO because such treatment must be recognised by the medical establishment and professions as being unethical and unlawful. But let us suppose that in 1957 John Bolam had been supported in his claim against Frien Hospital Management by a Nursing Assistant (NA) who claimed to have a CO to the inhuman treatment of Mr Bolam. If after this shamefully bias hearing the same verdict was given, the NA might well have been dismissed because their ‘personal conscience’ conflicted with, in Justice Mc Nair’s words, ‘a practice accepted as proper by a responsible body of medical men skilled in that particular art.’ Much of the Bolam case centred upon whether he had been informed of the harms of unmodified ECT and not whether unmodified ECT was brutal and inhuman per se. By 1957 there had been over a decade of high quality research on the harms and dangers of unmodified ECT (none of which was presented to the court). But even if our unfortunate NA had taken the conscientious stand they did because it was supported by the research, that would not have saved them unless they could, according Savulescu and Giublini, ‘explain the rationale for their decision’ (see their ‘consensus point’ 3). But the NA’s rationale would no doubt have failed in the court in 1957, and a NA (or indeed a doctor) might well fail today if they objected to a treatment on similar grounds. So to whom does the conscientious objector have to give their explanation? As most whistle-blowers know, rational explanations carry little weight, so it is somewhat naïve to assume that conscientious objectors will be ‘heard’. That aside, it is far easier, just and beneficial to the healthcare ‘system’ if CO, be it rational or irrational, continued and was properly managed for both staff and patients.

    What Savulescu and Giublini fail to recognise is that free speech and the right to object, for whatever reason including conscientious objection, are as essential in medicine and healthcare as they are in science, politics, art and the rest of society. I am inclined to agree with Paul Feyerabend when he reminded us in his ‘Science and a Free Society’ (1978) of the importance of pluralism and how ‘all’ knowledge and organisations must be kept open to criticism and dissent. He makes no secret of his indebtedness to John Stuart Mill in the formulation of his ideas and does not attempt to give ‘his’ reasons because they were, as he writes, ‘explained by Mill in his immortal essay ‘On Liberty’. [co-authored with Harriot Taylor] It is not possible to improve upon his arguments’. I am not always in agreement with Feyerabend or indeed Mill, but on this occasion I am with both.

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