The US Department of Health and Human Services (HHS) has formed a Conscience and Religious Freedom Division (CRFD), whose purpose is to “restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom.”
Health care providers (HCPs) can file a complaint with the HHS’s office of civil rights if they believe they have been discriminated against because they objected to or participated in specific medical procedures, were coerced into performing procedures that are against their religious or moral beliefs, and/or refused to provide items or services with the purpose of causing the death of an individual.
Examples of this discrimination abound. A Catholic care home in Belgium was fined 6,000 euros for refusing to allow euthanasia. In Canada, the Superior Court of Justice recently ruled that Ontario doctors who conscientiously object to a procedure are still required to provide the service in an emergency, and in non-emergencies they must refer the patient to another physician.
Despite these documented cases of discrimination against conscientiously objecting HCPs, the New England Journal of Medicine recently published an attack on the new conscience protections.
In her essay, “Divisions, New and Old — Conscience and Religious Freedom at HHS”, University of Michigan academic Dr Lisa Harris depicts the CRFD as a polarizing and divisive decision. However, she also fears the political reaction to the conscience protections are bound to be just as angry and divisive.
Dr Harris instead argues for both sides to embrace the moral complexity of clinical care and to use these complex experiences to form and develop conscience. Laudably, Dr Harris wants to reject the polarization and “scripts of political movements.” Authentic dialogue and a rejection of scripted talking points is always commendable, and her attempt to uncover a path between coercion to treat and total conscientious objection is well-meaning.
Yet her solution falls short of being a viable or reasonable solution to the problem.
To illustrate the kind of alternative path Dr Harris has in mind, she asks, “Is it possible…to hold in tension seemingly opposite ideas about abortion? Can we understand abortion as both something that ‘stops a beating heart’ and a fundamental right, rather than insisting it’s only one or the other?”
She then considers all of the following: women who seek abortions and want ultrasound pictures as keepsakes, abortion providers who feel sad about abortions sought for economic reasons, anti-abortion nurses who assist in medication during an abortion, and anti-abortion doctors who are reluctant to practice against the ruling of Roe v. Wade. These are illustrations of providers who appear to hold in tension conflicting views on abortion, as Dr Harris describes.
However, if Dr Harris is suggesting that health care providers (HCP) should simultaneously hold that a woman has a fundamental right to abortion and that “stopping a beating heart” is murder, then this cannot be reconciled with reason. First, consider whether we would we accept this “ethical tension” concept in any other profession besides healthcare. It is hard to imagine how Dr Harris’s solution could help, say, a police officer who is asked to enforce a law he or she believes to be unjust. Should the police officer embrace the complexity and ambiguity of this situation as Dr Harris suggests? What does that equate to in practice?
In any case, a logical analysis of the two claims demonstrates how “ethical tension” is still inapplicable for a certain subset of HCPs. Now, Dr Harris herself does not define what a right is, probably because of the lack of consensus and controversy around the concept. No doubt some HCPs will hold to a traditional account of rights; that rights are a certain moral protection for an individual in the pursuit of the good. However, pro-life HCPs hold that abortion is contrary to the goods of life, charity, and justice: and, consequently, gravely evil. Accepting this, it is hard to see how any traditional pro-life HCP avoids the following logical steps:
If (1) rights are protection for the pursuit of the good,
and (2) abortion is contrary to the good,
then (3) abortion cannot be a right.
For the traditional pro-life HCP then, the idea of “ethical tension” never gets off the ground; the view that abortion is a fundamental right is not a principle they hold in tension. Even the anti-abortion HCPs that are concerned with the consequences of outlawing abortion are far removed from the position that abortion is a fundamental right.
In the case of the religious nurses who assist in abortions, the interpretation of “the tension of two contradictory positions [being held] simultaneously” seems forced. It is not the belief in a patient’s right to abortion that is the source of this tension, but rather a desire to care for the patient and repugnance towards the procedure.
I agree with Dr Harris that these seemingly contradictory positions could be and are held by many patients and HCPs, but upon closer examination, what positions are actually being held here? What do the “complex” HCPs define as a “right,” and what does “stopping a beating heart” mean to them? These questions are essential, because it is possible that the conflicting views that seem to be held in tension are not in tension at all.
To elaborate, all that is required to relieve this tension is the belief that stopping a beating heart is not a gravely immoral act (often through a means of justification like: “this human is not a person,” or, “a woman right to bodily autonomy,” etc.) Thus, an abortion is no longer contrary to the good, and can safely fall into the realm of a “right;” as such, the two positions are not in conflict at all.
Moral conscience formation
Another claim that Dr Harris makes is that life’s ambiguities and “full range of lived experiences” are necessary to form conscience in the first place. HCPs should see the complexity and moral diversity in their work settings as an opportunity for engagement and help, not division. Consequently, HCPs have a “real opportunity for moral leadership.”
I sincerely hope Dr Harris is not suggesting that doctors should be forming their moral consciences in the clinic. This would be absurd, since, in principle, answers to life-and-death bioethical questions cannot be found in the clinic. Nor can they be found in an experiment or microscope. Instead, they are found through rational and philosophical deliberation of the nature of the good.
Ideally, the formation of a moral conscience would have begun in childhood and reinforced through studies and institutional education. Then, in the clinical setting, the moral conscience should be applied. Again, how would we feel about police officers waiting to walk the streets before forming their moral conscience?
In conclusion, the idea of holding contradictory ethical claims in tension would be considered absurd if proposed for other professions. Furthermore, there is a subset of HCPs (traditional prolife) in which ethical tension cannot occur, and whose conscience (it would seem) still need protecting. Formation of the conscience in the clinic will not work, because the clinic does not offer ethical principles, only an opportunity to apply them.
Kevin Wilger is a research engineer in the medical device industry and author of the Plain Vanilla Ethics Blog. He resides in Lafayette, Indiana.