In late 2010, the Parliamentary Assembly of the Council of Europe (PACE) was presented with a report from its Social, Health and Family Affairs Committee expressing deep concern about the problem of “unregulated conscientious objection” in Europe. The Committee proposed to solve this problem by having states adopt “comprehensive and clear regulations” to address it.
The Council ultimately adopted a resolution that almost completely contradicted the premises of the report, but in 2011 the theme was resurrected by Dr Leslie Cannold, an Australian ethicist. Dr Cannold warned that, “[a]t best, unregulated conscientious objection is an accident waiting to happen,” and, at worst, “a sword wielded by the pious against the vulnerable with catastrophic results.” It was, she wrote, “a pressing problem from which we can no longer, in good conscience, look away.”
The UN High Commissioner for Human Rights complained about “unregulated conscientious objection” the following year, demanding that “laws and policies allowing conscientious objection” be changed. Meanwhile, faculty members of Monash and Oxford Universities Anne O’Rourke, Lachlan De Crespigny, and Amanda Pyman published a paper attacking “the unregulated use of conscientious objection.”
A paper appearing in April 2013 in the American Journal of Public Health advocated the need to challenge “the unregulated practice of conscientious objection.” Two months later, the Center for Reproductive Rights (CRR) and groups forming the Sexual Rights Initiative did just that, complaining to the UN Human Rights Council about “unregulated conscientious objection” in the United States.
Obstructing access to lawful drugs and procedures
Beginning with the PACE committee report, one of the consistent themes in these complaints is that “unregulated conscientious objection” is illegitimate and/or unethical because it hinders access to lawful drugs, procedures or services.
Time magazine has now provided a current example of this problem:
By September, Texas will run out of the sole drug it uses in lethal injections thanks in part to an overseas effort that has persuaded a European pharmaceutical company to halt its supply to U.S. states for use in executions.
The Pharmaceutical Hippocratic Oath
The company’s decision was the result of a continuing campaign by Amnesty International and Reprieve, organizations that oppose capital punishment. Reprieve has been especially successful in convincing pharmaceutical companies to prevent the use of their products in executions. A number of them have signed Reprieve’s Pharmaceutical Hippocratic Oath:
We dedicate our work to developing and distributing pharmaceuticals to the service of humanity; we will practice our profession with conscience and dignity; the right to health of the patient will be our first consideration; we condemn the use of any of our pharmaceuticals in the execution of human beings.
Reprieve describes the traditional Hippocratic Oath as the “bedrock of Western medicine” that should apply to drug manufacturers as well as physicians. Maya Foa, a Reprieve specialist in lethal injection, told Time that Reprieve is not attempting to stop capital punishment in the United States, but to convince pharmaceutical companies to abide by the Hippocratic Oath to “do no harm.”
Some companies that have responded positively to Reprieve’s lobbying may have been motivated by legal worries, and others might have been prompted by fear that bad publicity would reduce profits. However, at least some – including Texas’ supplier- have offered moral or ethical reasons for their refusal to supply drugs for lethal injections:
Lundbeck: “. . .Use of our products to end lives contradicts everything we’re in business to do – provide therapies that help improve people’s lives . . .”
Kayem: “. . .we voluntarily declare that we as Indian Pharma Dealer who cherish the Ethos of Hinduism (A believer even in non-livings as the creation of God) refrain ourselves in selling this drug where the purpose is purely for Lethal Injection and its misuse.”
Ganpati Exem: “. . . We are deeply opposed to the use of medicines in killing prisoners and wish to have no part in facilitating capital punishment in the USA or elsewhere. . .”
Corporate freedom of conscience
These statements are clearly analogous to the ethical positions taken by physicians and other health care workers – especially pharmacists – who, for reasons of conscience, refuse to participate in procedures like abortion, assisted suicide and euthanasia. In fact, the Euthanasia Prevention Coalition fully supports the Pharmaceutical Hippocratic Oath and has asked Maya Foya to extend the Stop the Lethal Injection Project (SLIP) to prevent the use of pentobarbital in euthanasia and assisted suicide.
Here we encounter an obstacle erected by those complaining about unregulated conscientious objection. They claim that institutions or corporations are not entitled to exercise freedom of conscience, since (they say) only individuals have consciences, so only individuals can assert a right to freedom of conscience. The Irish government has recently adopted this view with respect to Catholic hospitals, while the New York Times editorial board has relied on the same reasoning to denounce civil liberties lawsuits brought by businesses: “Profit-making corporations are not human beings capable of engaging in religious exercise.”
Certainly, the New York Times editorial board could argue that corporations or institutions that sign the Pharmaceutical Hippocratic Oath are not “really” exercising conscientious objection or not “really” taking a moral or ethical stand, even though that is how it appears. It could describe Lundbeck’s decision purely in terms of amoral corporate autonomy, or as a naked exercise of corporate self-interest. It could, if it wished, even argue that it is legitimate to refuse to supply legal products for lawful purposes if the decision is based on worries about profitability, but not if based on moral conviction. Of course, all of this would require that the New York Times continue to do what it did in its editorial: adopt and act upon corporate moral or ethical convictions, which, according to its editorial, a corporation cannot possibly have.
Corporate moral/ethical responsibility
In any case, there is a point beyond which deconstruction becomes fabrication. It is not reasonable to assert that those who sign the Pharmaceutical Hippocratic Oath intend to express only a commitment to corporate profits and success, and do not mean to express moral or ethical convictions about executions by lethal injection. Moreover, the tone and content of the Time magazine article suggests that the corporate signatories to Oath did nothing unusual or inappropriate in formulating and acting upon conscientious convictions about execution by lethal injection.
On the contrary: the reader is left with the impression that corporate recognition of moral obligations is entirely natural and expected. Those cited or quoted by Time believe that pharmaceutical companies are ethically obliged to prevent their products from being used for executions, and would be culpably negligent if they did not. For example, Time quotes an open letter to the chief executive officer of Lundbeck from Dr. David Nicholl and 60 physicians and academics stating that they were “appalled at the inaction of Lundbeck to prevent the supply of their drug, Nembutal [pentobarbital], for use in executions in the USA.” (Emphasis added.)
Facilitation and referral
Contrast this with Dr Cannold’s approach: that objectors may “step away from participating in an activity to which they object, but cannot step in the way” to prevent people from accessing lawful services. On this view, even if corporations were entitled to exercise freedom of conscience (and the New York Times, Dr Cannold and others say they are not), they would not be entitled to actively prevent access to pentobarbital.
On the contrary: Dr Cannold and her confreres demand that objectors facilitate access to morally contested procedures by referral or some other means, so that no one is deprived of access to a lawful service. This is touted as a “balance” of competing rights, or as a compromise. Under this kind of regulatory scheme, Lundbeck would be required to help the state of Texas find alternative supplies of pentobarbital or other drugs that could be used for lethal injection.
This would be clearly unacceptable to Reprieve and the signatories to the Pharmaceutical Hippocratic Oath. After all, none of the companies were directly involved in providing lethal objections to begin with. Pressure brought to bear on them was effective because of a general conviction that even blind distribution of pentobarbital through middlemen was sufficient to make them morally complicit in executions by lethal injection, since it was possible to arrange distribution to prevent executioners from obtaining the drug. It is ludicrous to suggest that Reprieve or the signatories would agree that deliberately facilitating executions by referring executioners to other sources of pentobarbital involves no significant degree of moral complicity.
The ethical norms approved by the American Medical Association and the World Medical Association are relevant here. Both associations consider it unethical for physicians to participate in capital punishment, and both define participation to include indirect facilitation in any way. In 2012 the WMA reaffirmed this position and expressly stated that physicians must not “facilitate the importation or prescription of drugs for execution.”
Corporate moral/ethical evangelism
Lundbeck sold the rights to pentobarbital to an American firm in 2011, but the sale was conditional upon an agreement that the new company would adhere to the same restrictions on the distribution of the drug as Lundbeck. The agreement effectively imposed Lundbeck’s corporate moral view of execution by lethal injection on the American company, apparently in perpetuity, but it does not appear that the condition has been challenged or questioned. Time reported the agreement without comment and without seeking comment from third parties, which suggests that both the reporter and Time’s editors considered the restriction on distribution to be within the parameters of ordinary and acceptable business arrangements.
Compare this with the controversy that often erupts when Catholic hospitals attempt to make conformity to Catholic teaching a requirement in hospital mergers. Such restrictions are loudly protested and contested by groups like MergerWatch and the American Civil Liberties Union (ACLU). Three weeks before the Time story appeared, the Seattle Times praised the Governor of Washington State for directing a review of rules governing hospital mergers and partnerships. The Governor was responding to lobbying by the ACLU, among others, who complained that Catholic institutions are likely to insist upon Lundbeck-type restrictions against elective abortion and assisted suicide.
Much of this was left out of the Time feature because the magazine did not make the connection between Lundbeck’s refusal to supply pentobarbital to executioners and ongoing controversy about freedom of conscience in health care. The story of Lundbeck and the Pharmaceutical Hippocratic Oath is not just a story about opposition to capital punishment, but about “the problem of unregulated conscientious objection,” presented in a new and potentially enlightening context.
Sean Murphy is the administrator of the Canada-based Protection of Conscience Project.