Conscientious objection has been a contentious issue in public policy for decades. While controversy was originally focused on objection to participation in the military and foreign conflict, debate in recent years has shifted to issues in healthcare and the public service. A particularly controversial example in medicine in Australia recently has been disagreement over whether State laws should mandate that medical practitioners refer patients to abortion providers where a provider is sought.
With a number of influential bioethicists currently campaigning for tight restrictions on conscientious objection in the provision of “basic medical services,” it is useful to explore the conflicting perspectives at the heart of this polarised and divisive debate.
Recent criticism of conscientious objection in healthcare has focused on the conflict between the medical profession’s attitude to the law and its contrasting attitude to the exercise of individual conscience. The Australian medical profession ostensibly takes the law as an authority on what procedures it should and should not provide; yet AMA guidelines allow for individual practitioners to show a degree of discretion in whether they participate in particular procedures.
While there is a distinction between elective procedures and those widely considered “basic services,” the sorts of procedures that are at the heart of the debate (such as the provision of abortion and contraceptives) are taken by some to constitute “basic services.”
Furthermore, as Canadian bioethicist Udo Schuklenk emphasised in a recent article in the Journal of Medical Ethics, the “values conflict” is particularly acute in liberal democracies where a significant emphasis is placed on respect for patient autonomy and the minimisation of “doctor paternalism.” Insofar as liberal democracies are premised on the idea of a neutral stance toward controversial moral questions, it would seem that State-funded healthcare should embody this idea and not allow for medical paternalism in relation to procedures such as pregnancy termination.
A good example of such a conflict at play is the 2013 case of Dr Mark Hobart, a Victorian pro-life GP who refused to refer an Indian couple to an abortion clinic after they expressed a wish to terminate their second trimester pregnancy. Dr Hobart was investigated by Australian Health Practitioner Regulation Agency (AHPRA) for close to year, though was let off with a “slap on the wrist” in 2014. Critics of doctor Hobart suggested that he was refusing his clients “medically based, unbiased information.” Hobart, in other words, was refusing to adopt the sort of value-neutrality that should characterise publically-funded healthcare in a liberal democracy.
Freedom of conscience: a fundamental right?
There are many who vehemently oppose the restrictions on conscience being proposed. The main argument made against the “liberal democratic” critique of conscience is that it would lead to the violation of a fundamental right of medical professionals – namely, their right to act in accord with their deeply held convictions.
The picture of conscience that advocates of conscientious objection typically present is something like an “inner moral compass” shaped by the moral and religious views that are constitutive an individual’s identity. To force a medical professional to act contrary to their conscience would not simply mean mandating that they participate in a controversial operation or procedure; it would mean doing violence to the very sense of identity of that professional. The moral distress involved in this sort of coercion can never be justified, regardless of how society views the procedure in question. Or so advocates of conscientious objection in healthcare argue.
Initially this account may seem compelling. Yet when we consider the commitments involved in adopting it, there is clearly cause for concern. The kind of conscientious objection being considered not only pertains to procedures such as abortion, but also more generally to medical praxis that has up until recently been considered uncontroversial. In Britain 36% of Muslim medical students who participated in a recent survey declared that they would object to examining patients of the opposite sex, while nearly 50% of the students surveyed, from a variety of religious groups, declared that doctors should have the right to conscientiously object to any procedure.
If we allowed for the sort of conscientious objection that proponents of the “conviction” model of conscience would advocate, we would risk preventing patients from receiving timely and effective medical care.
A restricted view of conscience
While an unbridled right to conscientious objection presents serious problems, it is nevertheless reasonable to give more space for conscience than the liberal democratic critique allows. What seems to be needed are State restrictions on conscientious objection that, on the one hand, still allow for what we take to be acceptable instances of objection, while nevertheless limiting the sorts of sweeping abstentions that some doctors may try to claim.
Insofar as our society places at least some sort of value on respect for conscience, it would seem reasonable to protect this right, albeit in a restricted way, in healthcare.
What I would propose for Australia is something like the British Medical Association’s model for conscientious objection. The BMA framework limits the scope for conscientious objection to the controversial procedures of abortion, fertility treatment and the withdrawal of life-sustaining treatment. If I were devising such a framework for Australia, I would include provision of contraceptives in the list, as well as a clause that ensures that, even in cases of emergency, doctors are neither legally coerced into performing the said procedures nor forced to refer patients to the relevant services.
Yet the BMA “list” approach allows for abstention from archetypal “controversial procedures,” while at the same time limiting the scope of practitioners to claim arbitrary exemptions from the provision of basic medical care. For this reason it is stronger than other extant frameworks.
Catholic healthcare providers in Australia are currently more concerned about the euthanasia debate than conscientious objection. Yet it seems that restrictions on conscience are a more serious threat than changes to assisted dying legislation; statutory restrictions on conscience in healthcare may, in the worst-case scenario, actually lead to these providers being forced to allow for the provision of contraceptives and other controversial “treatments” in their hospitals. The legalisation of euthanasia, while cause for concern, is unlikely to lead to any coercive changes in the Catholic healthcare system.
Xavier Symons is a research associate with the Institute for Ethics and Society at the University of Notre Dame, Australia. This article was originally published on the ABC’s Religion and Ethics blog and is reproduced here with permission of the author.