Even as it becomes more necessary the right of conscientious objection comes under increasing attack, from activists and academics alike. In the following interview MercatorNet editor Michael Cook plays devil's advocate as he puts common objections to British philosophy professor Dr David Oderberg.
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Michael Cook: Oxford’s Professor Julian Savulescu has written that conscientious objection opens “a door to a Pandora's box of idiosyncratic, bigoted, discriminatory medicine.” Are views like this widespread in academe and in the health bureaucracy?
Dr Oderberg: I don’t know how widespread they are but they are common, at least judging by the academic literature on the topic. I imagine, though I have no direct knowledge, that within health care the same sort of concern is present. I understand the worry. It’s similar to worries in liberal, pluralistic, democratic societies, about all civil rights such as freedom of speech and of the media. Any civil right can be abused, so we need systems in place to minimise that (though it can hardly be eliminated).
That a conscientious objection is idiosyncratic (out of the ordinary, unusual, strange-seeming in current society) should not ipso facto make it unreasonable. I’m not sure what “bigoted” means in this context, but certainly discriminatory medicine should not be allowed, if by this you mean, say, refusing to treat someone because of their race, religion, age, or disability. Gender is a hard one to some extent since many Muslim doctors refuse on conscience grounds to examine members of the opposite sex. This is not obviously unreasonable, is it?
So Prof Savulescu raises a perfectly fair concern. My position is that the necessary statutory and judicial regime for handling conscience cases within health care should have safeguards built into it. A reasonableness test should be used, albeit such a test is sometimes hard to apply – though it is used throughout the law. In my Declaration in Support of Conscientious Objection in Medicine, which I encourage sympathetic readers to sign, I say the following:
“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.
“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.
“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.
“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.
“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.”
Aren’t the rights of healthcare workers already protected in law?
In the UK you could write the existing, very limited protection for freedom of conscience on the back of a postcard. There is a conscience exemption for “participation” in abortion, another for embryo experimentation and IVF-related activities, and a code of practice guideline on withdrawing food and water from patients lacking “mental capacity”.
The UK Supreme Court has interpreted the abortion exemption restrictively, so only ‘hands-on’ performance is exempt. Ancillary but also highly problematic activities for many conscientious objectors, such as management of an abortion ward or delegation of tasks, is not protected – as the Glasgow midwives found out to their chagrin.
In Australia, the AMA has what appears on its face to be a position statement supporting solid protection of freedom of conscience in health care, though it is not legally binding of course. The Australian Nursing and Midwifery Federation policy on conscientious objection is similarly robust. As far as legal protection goes, however, the situation is as poor as it is in the UK and many other countries. There is no broad-based right of conscientious objection in health care.
As is so common, it is all about abortion (which, in my view, is no more than an historical accident). And it depends on what state the health care worker practises in. For example, in Victoria there is protection against being required to “perform, direct, authorise or supervise” an abortion as long as there is no threat to the mother’s life if she does not have an abortion. There is, however, compulsory referral to a willing practitioner. In the ACT, by contrast, there is a blanket exemption from any “duty (by contract or by statutory or other legal requirement) to carry out or assist in carrying out an abortion.”
It is encouraging that the Victorian and ACT legislation explicitly cover forms of assistance or cooperation in abortion (apart from Victoria’s compulsory referral), unlike the UK. Central to my position on conscience in health care is that compelling an objector to refer a patient to a practitioner who does not object (whether to abortion or some other treatment or service) is a violation of freedom of conscience. It would be like the case of person A who asks person B to rob a bank for them; B refuses because he considers it immoral, but tells A he knows a person C who is willing to rob the bank and that he will put A in touch with C! One ought to suspect B’s sincerity or rationality in such a case.
More generally, I advocate the development of a civil jurisprudence of cooperation, backed by statute, so that conscientious objectors are protected against being coerced to cooperate or assist, in a proximate way, with actions to which they object. There is a spectrum of cases, with those clearly deserving protection at one end and those that are sufficiently remote and not deserving protection at the other. Booking a woman in for an abortion would be an example of the former; maintaining hygiene on an abortion ward would be an example of the latter. It is, in my view, up to the good sense of common law judges, backed by a general statutory framework, to develop a rich case law on conscience and cooperation, as they have done already with the criminal law of complicity.
We expect lawyers and plumbers to do the job they’re paid for. Isn’t it the job of doctors to do whatever their patients request?
Like all defenders of conscience in health care, I find this thought highly troubling. A doctor should never be treated either as a mere functionary of the state (consider the Nazi doctors and their euthanasia programme for “lives not worthy of life”) or as the patient’s personal valet. Doctors, by the very nature of their profession, are highly trained in the most intimate areas of human physical well being. They are not mere service providers. They are bound to treat their patients’ best interests as their top priority – except at the expense of being compelled to do what they believe to be seriously morally wrong. Most of the time, the patient’s best interests and the moral integrity of the doctor will coincide, but we must consider the fact that sometimes they do not.
Abortion is instructive here, even if it is an historical accident that the conscience debate tends to revolve around this practice. It might be in a woman’s interests – at least in a narrow medical sense – for her to terminate her pregnancy, but many doctors believe that the means to fulfil those interests are intrinsically immoral, namely the intentional taking of a human life. It is not for the state or for the patient, at least in a liberal, pluralistic society where serious differences exist over morality and religion, to resort to compulsion against the doctor, thereby depriving him of his moral and professional integrity. A health care worker ought to be allowed to opt out of doing what they believe violates their sincere and deeply held ethical or religious beliefs. It is for the profession, supported by the state, to ensure that patients affected by such opt-outs can receive in a timely fashion any treatment to which they are legally entitled.
Some writers argue that refusals to provide abortion, euthanasia or transgender treatment are “invidious discrimination” against a certain class of people. In the past this has led to “enslavement, genocide, and oppression as well as denial of basic rights and liberties”. Isn’t there some truth in this?
The way you put it, I confess to finding little merit in the complaint; it reeks of hysteria. Are we asked to believe that if a medical practitioner refuses to provide what a patient requests, due to a conscientious objection, this is “invidious discrimination”? On what grounds? This complaint misunderstands the very essence of a conscientious objection. The form of the objection, if I might indulge in some inevitable philosopher-speak, is not: “I refuse to do X to patient Y because of who/what Y is.” Rather, it is: “I refuse to do X to patient Y because, according to my ethical beliefs, this would be an immoral act/this would violate my conscience.”
Take transgender treatment as a highly topical example. Many health care professionals (most, perhaps?) would, if pressed, refuse to administer transgender treatment to someone who requested it, even if the treatment were completely legal (but assuming no legal sanction for refusing). They would object, say, to administering puberty blockers to a pre-pubescent individual, or carrying out the highly invasive and frankly dangerous surgery involved in full gender “reassignment”. No doubt some would refuse because they found it all distasteful, or they regarded the whole transgender movement as plain weird or some such.
These attitudes do not amount to conscientious objection, and I would suppose only a minority of relevant health care workers had that sort of attitude. Most would cite genuine reasons of conscience, primarily that it was just not good for the patient to undergo such treatment, whereas their professional oath is to do no harm. Or they might find it morally objectionable on some other ground. This sort of reason is not “invidious discrimination”. It is not about who or what the patient is, but about what the patient wants the doctor to do. It is no part of conscientious objection to deny the patient their legally available treatment and so undermine their legal rights. The attitude of the true conscientious objector is: “The patient can have X as far as I am concerned, only not from me.”
Isn’t the drive for conscientious objection basically a plot by Christians to impose their views on others? After all, the metaphysical beliefs of Christians are contested everywhere, especially in Britain.
Again, I confess to finding the fear of plots to be almost laughable. Christianity is in such a sorry state, in all its forms throughout the West, that a genuine plot to impose any views on anyone would itself be almost miraculous. No one has informed me of a plot. I know that the worry about “imposing views of others” always gets a good airing in the conscience debate as elsewhere, but it is a groundless worry. No one who supports freedom of conscience in health care, as far as I know, is suggesting that anyone be allowed to “impose” anything on anyone else.
On the contrary, by denying conscientious objection, the critics wish to impose their own morality and beliefs on practitioners for whom the relevant activities are contrary to their own 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. How difficult is this for critics of conscience in medicine to understand?
That said, no one should pretend that the majority of public defenders of conscientious objection in health care, such as myself, are not pro-life – opposed to abortion and euthanasia, for example. They would, no doubt, like to see existing laws permitting abortion and/or euthanasia either tightened or eliminated. The fact is, however, that in countries where such actions are already legal, the prospect of overturning such laws is next to nil. Even if, in the USA, Roe v Wade ends up being overturned by the Supreme Court, I doubt that the abortion statistics will see more than a dent.
So the defence of conscientious objection should in fact be seen as the opposite of a dastardly plot to impose Christian or similar ethical views on others. It is, to be frank, something of an admission of defeat on this score. Certainly, I would remind defenders of conscientious objection that they should keep separate the conscience issue – the need for the legalisation of opt-outs – from the policy issue. The policy issue is about whether/how to influence legislators and policy makers to change laws to which one is opposed. The conscience issue is, to repeat, not that issue.
What about people whose consciences compel them to provide services like abortion and euthanasia? Should their consciences also be protected?
In my Declaration, I have the following FAQ:
“Q. Does freedom of conscience imply the right to do certain things, such as perform procedures on patients even against their will? A. Freedom of conscience and religion in health care is primarily about the right to withdraw from or withhold participation in some activity or practice. It is far less – some might argue not at all – about the right to perform some act or do something to a patient on conscience grounds, irrespective of whether the patient wants that treatment or not. There might be cases in which a right of performance applies as well, but these would be rare and would, of their nature, be subject to a significantly weaker presumption in favour of the rights of conscience.”
To elaborate: I see a difference between the right to be involved and the right not to be involved. Freedom of conscience is primarily, if not exclusively, about the latter. The right not to be involved entails the right not to be coerced into being implicated in an act that violates conscience. The right to be involved, on the other hand, entails the right to implicate oneself in the life and activities of another person. The presumption against this is surely much stronger than the presumption against the right not to be involved in another person’s life and activities. Otherwise, what exactly is a liberal society all about? Or should we just accept that liberal societies don’t exist any more – that they have been replaced by what one might call “secular authoritarian” societies?
Of course, we can imagine scenarios in which a conscientious objection to not treating a patient in a certain way would be reasonable: in a hospital staffed largely by Jehovah’s Witnesses, a medic who did not subscribe to that ethical-religious outlook is likely, on conscience grounds, to insist on administering a blood transfusion. But when it comes to abortion, euthanasia, transgender treatment, and all the other medical issues already here or on the horizon due to rapidly developing technology – extreme body modification, ‘cognitive enhancement’ with brain-altering medication, prescribing legal performance-enhancing drugs in sport, body dysmorphic disorders that lead to patients requesting the amputation of healthy limbs – it should be obvious that reasonable disagreement between people of good will is possible and actual. This disagreement should of itself rebut any presumption in favour of acting. When it comes to health and well being, the adage “when in doubt, do nowt” has a lot going for it.
Shakespeare wrote that “Conscience is but a word cowards use, devised at first to keep the strong in awe.” Aren’t doctors who refuse to perform a duty imposed upon them by the law actually doing something immoral?
But no doctor is under a legal duty to perform an abortion, withdraw life support, administer puberty blockers, or whatever. These actions are legal in the countries we have in mind. No doctor will, all things being equal, be prosecuted for doing any of them. It does not follow that, at any time or place, any particular doctor is under a legal obligation to do any of these things.
To put it slightly differently, to say that they are under a “duty imposed upon them by the law” is precisely to beg the question against the defender of freedom of conscience. Is there such a duty? And even if there is, why does it follow that they are doing something immoral if they fail to comply? Because what the law says goes, as in Nazi Germany? Maybe “orders are orders”, as the Japanese doctors presumed in the notorious and horrific Unit 731?
I fully appreciate that the appeal to conscience can be but a ruse, or a source of mischief. I am not seeking to elevate it above every other consideration. Many civil rights have to be balanced, as always. Any right can be abused. I call on legislators and the courts to start taking Article 18 of the U.N. Declaration of Human Rights seriously, and on governments in liberal societies to have a public consultation on how best to protect conscience in health care without denying any other legal rights. If now is not the right time for such action, when is?
David S. Oderberg is a Professor of Philosophy at the University of Reading in the UK.