Conscience Rights or Conscience Wrongs?: Debating Conscientious Objection in Healthcare

Written by: David Albert Jones, Anscombe Bioethics Centre

& Alberto Giubilini, Oxford Uehiro Centre for Practical Ethics, Wellcome Centre for Ethics and Humanities, University of Oxford

For the purpose of this debate (held online on 12 October 2020), Alberto Giubilini and David Albert Jones each adopted a position on conscientious objection (CO) contrary to the one that he in fact holds. David A. Jones, who is a defender of a right to conscientious objection in healthcare, made the case against it. Alberto Giubilini, who is against a right to conscientious objection in healthcare, made the case in favour of it. What follows is an evaluation by each of the arguments of the other in relation to their strengths and how they were presented.

DAVID JONES:

The Case for conscientious objection in healthcare by AG evaluated by DJ

Two key planks of Alberto’s argument in favour of CO were the UN Declaration on Human Rights and the value of moral integrity. These arguments are complementary and comprise perhaps the most widely accepted starting points for an argument in favour of CO in healthcare. The UN Declaration attempts to codify fundamental moral and political rights that are recognised by people of different religions and philosophical views. It looks not inwards to the individual but outwards to the kind of society that grants people the liberty they need to flourish. Alberto rightly identified freedom of conscience, and hence CO, as a secular freedom which does not concern the privileging of religion but concerns the freedom of each person to act conscientiously without having to appeal to religion.

The presentation would have been stronger had Alberto distinguished freedom of religion and freedom of conscience more clearly and had focused exclusively on secular arguments and secular examples. The example of Roman Catholic objection to abortion, even though this is a very common example of CO in practice, is not so helpful in thinking through the issues, as it could be misconstrued as respect for freedom of religious belief rather than respect for moral conscience in a healthcare context. A wider variety of examples framed principally in secular terms would have made the case more clearly.

As freedom is always relative, it could be argued that people can be free even if CO in healthcare is not recognised, because people would still have the freedom not to enter healthcare. Alberto argued convincingly that exclusion from working in healthcare is a significant restriction on freedom which should not be accepted without very strong reason. Alberto’s argument would have been stronger had he considered policies that had the effect of excluding people from professional roles on the basis of their gender or ethnicity. The exclusion of groups or categories of people from working in healthcare not only discriminates gravely against those people but also impoverishes the diversity of the professions which then fail to reflect the society they exist to serve.

The second plank of Alberto’s defence of CO is the importance of moral integrity. Insofar as we value moral integrity we should respect CO. Even if CO is sometimes inconvenient to others, respecting CO is part of the price we pay for promoting moral integrity. AG did not attempt to go any deeper and ask why we should respect moral integrity. This argument could have been deepened by asking what ‘should’ means in this sentence. If ‘should’ means: what is good or right or virtuous to do, that implies that we value doing what our moral integrity demands. There can be no moral duty without recognising the duty to be moral, no ethical standards without respect for the commitment to act ethically.

A subsidiary argument of Alberto is that claims of CO in medicine are, at least in general and for the most part, concerned with practices where it is disputed whether the procedures are part of medicine. This is most obviously the case with abortion and with assisted suicide. Some argue that these procedures should be included routinely within healthcare. However, the undeniable fact that laws on these topics vary between nations, and that this variation is shaped at least in part by moral beliefs and social attitudes, puts these practices in a different category. There is no country with modern medicine in which vaccination or antibiotics or heart surgery are illegal, but the great majority of countries have some specific legal restrictions on abortion and, in most, assisted suicide and euthanasia are entirely prohibited. Alberto also showed clearly that mitigating harm should the practice be done outside medicine is not a sufficient criterion for something to be accounted as medicine. Execution does not become part of medicine if a doctor can perform with less associated pain or distress than the hangman.

Alberto seems correct in proposing that whether a practice is uncontroversially a core element of medicine or is a liminal / disputed element has some relevance for CO. However, the nature of this relationship requires further elaboration. He presented the distinction of core and disputed medical practice as a bulwark against the slippery slope argument that CO could apply to the whole of modern medicine. On the other hand, even practices that are clearly part of medicine might be the occasion of CO. Imagine a doctor objecting to trialling a new vaccine within a vulnerable population before its safety had been better established. The distinction does not help when a healthcare professional objects not to a procedure as such, but to this use of this procedure in this patient. Nevertheless, in terms of carving out a robust legal protection for specific cases of CO it is potentially very useful to identify procedures where there is a dispute about whether the procedure constitutes healthcare. Alberto has drawn attention to an important question.

The key arguments presented by Alberto thus seem sound and the main weaknesses were in not pressing them further or in the use of examples that were unhelpful because contentious or extreme. In one important respect, however, he mischaracterised or misunderstood the views of most of those who defend CO. This was in his assertion that recognition of a right of CO necessarily implies relativism because claims of those in favour and those opposed to the procedure would be on “an equal footing”. This claim is equivalent to saying that a person who defends the freedom of the press and/or academic freedom must thereby be a relativist about truth claims. If this were the case, then those in power who were convinced of the truth of some claim or other would seem right or even duty bound to supress any expression of contrary opinion in the media or the academy.

On the contrary some may think that freedom of expression is important not because every person’s view is equally valid, but because truth claims need to be tested by argument and evidence. There are limits to press or academic freedom, but in general allowing people to pursue the truth freely and to make contrary arguments in public and academic fora serves progress in shared understanding. In a similar way, promoting the value of moral integrity is premised on the idea that moral action aims at least at what is truly and objectively valuable, right, good and virtuous. The UN Declaration, with which AG began his argument, bases freedom of conscience not on relativism but on an objective appeal to the dignity of human nature. Respect for CO is important because the objective moral truth is important and this will not always lie with the majority.

ALBERTO GIUBILINI

The case against conscientious objection in healthcare by DJ evaluated by AG

David frames the claim of those who, like me, are against the idea of a right to conscientious objection in healthcare as follows: “We should gives no generalized permission in advance to refuse to provide certain services”. This is a fair characterization of the main thesis.

However, one problem is that David qualifies this “permission to refuse to provide a service” as a permission to break the law. I do not think this is the best way to frame the issue. Those who, like me, argue against CO do not usually think that the problem is that conscientious objectors break the law. First, as a matter of fact, CO is legal in many cases, so this point could be too easily dismissed. Second, the focus is on the ethics of the profession, more than on legal requirements. According to those who argue against CO, legal and professional regulations should be based on an ethical assessment of healthcare professionals’ responsibilities. It does not matter much whether CO is legal. The question is whether it should be legal.

Take the case David discusses at the beginning. David illustrates the argument against CO by giving the example of a doctor who provides a patient with a lethal drug. The doctor, in conscience, thinks that suicide is the best option for that specific patient, given the patient’s clinical situation and their prospects. In this way, the doctor is in breach of the law and expresses their disagreement with the law that prohibits assisted suicide (we are assuming this is happening in a country where physician assisted suicide is illegal). The idea is that a doctor should not be allowed to provide the drug in breach of the law, even if for him it is a matter of conscience, because doctors cannot be a law unto themselves. I think this way of presenting the main claims of those who oppose CO succeeds in certain respects but fails to capture some of the key aspects of the arguments against CO in healthcare.

It succeeds in that it clearly shows one of the main points of those who argue against CO: freedom of conscience matters, but it does not matter more than legal requirements and professional standards. It also shows how the arguments for CO that are typically applied to the case of abortion would, for consistency’s sake, need to be applied to other cases where CO would be seen less favourably. This is something that opponents of CO like me normally take as a reductio ad absurdum of the case for CO. Finally, the example captures very well the idea, which those who argue against CO often advance, that no matter how much a professional disagrees with a certain law, if that is the law regulating their own professional practice, then they should stick to the law that society endorses and not to the law within themselves, or the law of conscience.

However, this example fails to capture at least three key aspects of the case against CO. First, as mentioned above, the problem with CO is not about breaking the law, but about acting against the ethics and the ethical standards of the profession (of course, what the ethics of the profession is and what ethical standards should there be are up for debate. Here I am not assuming any particular stance in this respect with regard to assisted suicide). Second, the problem with CO is that healthcare professionals typically request to act against, or at best regardless of, their patient’s best interest (e.g. the best interest of a woman who needs and is entitled to receive an abortion). In David’s example, the reason the doctor has for giving the patient’s the drug is the doctor’s conscientious belief about what is in the patient’s best interest. It is easier to ethically justify conscientious objection when a doctor’s conscience aligns with a patient’s best interest. For example, even if I do not think that, generally speaking, a doctor should break the law, I would be more inclined to justify CO in the case David presents than in the “standard’ case of abortion. But unfortunately, this is typically not the case: often, conscientious refusals harm or risk harming a patient, and these are the difficult (and ethically interesting) cases. Third, when healthcare professionals have a CO, they do not typically intend to express their disagreement with a certain law (say, a law permitting abortion) – disruptive behaviour meant to express disagreement with the law is better characterized as civil disobedience. Their point is about preserving their moral integrity by “keeping their hands clean”. Again, I think it is easier to justify civil disobedience – which typically comes at some personal cost – than to justify CO as understood in the healthcare ethics debate.

David rightly refers to professionalism as one of the central principles in the case against CO. Professionalism, as he rightly notes, at the very least requires doctors to refer a patient to a colleague willing to perform a certain procedure. This is because, no matter what a doctor’s moral beliefs are, professionalism requires the doctor at the very least not to harm or pose a significant risk of harm on to a patient. I largely agree on the way David characterizes this point. He presents a very strong version of one of the main arguments typically advanced against CO. However, in my view (though admittedly this point is not widely shared among opponents of CO) professionalism would require more than just preventing harm, and therefore more than just referring a patient to a willing colleague. The reason is that professionalism entails other principles, besides “do no harm”. It incudes, in particular, a principle of fairness whereby a professional ought to do whatever falls within their professional responsibilities, and therefore they are paid for, so as not to overburden their colleagueS who work under the same professional responsibilities and contractual arrangements (e.g. are paid equal salary).

With regard to the last point, it is important to point out, just to briefly refer to an analogy that David mentions, that unlike the case of those who conscientiously object to military conscription, conscientious objectors in the healthcare profession typically expect their objection to be “costless” (i.e. they would not want to pay a price for it, e.g. by providing some alternative service) – and indeed those who defend a right to CO in healthcare typically also argue for costless exemptions. This is unfair, in my view. The aspect of fairness in professional settings is perhaps one that is not emphasized enough in David’s presentation.