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The Inevitability of Assessing Reasons in Debates about Conscientious Objection in Medicine

Published online by Cambridge University Press:  09 December 2016

ROBERT F. CARD
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Abstract:

This article first critically reviews the major philosophical positions in the literature on conscientious objection and finds that they possess significant flaws. A substantial number of these problems stem from the fact that these views fail to assess the reasons offered by medical professionals in support of their objections. This observation is used to motivate the reasonability view, one part of which states: A practitioner who lodges a conscientious refusal must publicly state his or her objection as well as the reasoned basis for the objection and have these subjected to critical evaluation before a conscientious exemption can be granted (the reason-giving requirement). It is then argued that when defenders of the other philosophical views attempt to avoid granting an accommodation to spurious objections based on discrimination, empirically mistaken beliefs, or other unjustified biases, they are implicitly committed to the reason-giving requirement. This article concludes that based on these considerations, a reason-giving position such as the reasonability view possesses a decisive advantage in this debate.

Keywords

consciencejustification in conscientious objectionreasonablenessexemptionsprofessional responsibility
Type
Special Section: Conscientious Objection in Healthcare: Problems and Perspectives
Information
Cambridge Quarterly of Healthcare Ethics , Volume 26 , Issue 1 , January 2017 , pp. 82 - 96
Copyright
Copyright © Cambridge University Press 2016 

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References

Notes

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2. Wicclair, MR. Conscientious objection in medicine. Bioethics 2000;14(3):205–27.CrossRefGoogle Scholar

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4. The primacy tenet is echoed in ethical codes such as statements of research ethics (e.g., the Declaration of Helsinki) that proclaim medical personnel’s duties to safeguard human subjects’ well-being and to not treat subjects merely as a means of advancing the interests of society or science. For more, see Card, RF, ed. Critically Thinking about Medical Ethics. Upper Saddle River, NJ: Pearson; 2004:421.Google Scholar

5. See note 1, Card 2007, at 10.

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8. See note 7, Fernandez Lynch 2008, at 87.

9. Fernandez Lynch states that she does not wish to protect providers who act from discriminatory motives; however, as I detail, certain features of her view seem to make this stricture difficult to maintain. See note 7, Fernandez Lynch 2008, at 153.

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12. See note 11, Savulescu 2006, at 294.

13. See note 11, Savulescu 2006, at 297.

14. See note 11, Savulescu 2006, at 296.

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16. See note 15, Dickens, Cook 2011, at 164.

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19. Roe v. Wade 410 U.S. 113 (1973).

20. See note 18, Joffe 1995, at 53.

21. Husband: Ireland hospital denied Savita Halappanavar lifesaving abortion because this is a “Catholic country.” CBSnews.com November 14, 2012; available at http://www.cbsnews.com/news/husband-ireland-hospital-denied-savita-halappanavar-life-saving-abortion-because-it-is-a-catholic-country/ (last accessed 21 Aug 2015).

22. The gap in the law regarding how to define a threat to the life of the woman was apparently recognized by the Irish government after this incident with Ms. Halappanavar. The Irish government passed into law clear requirements for when a termination is necessary to prevent a risk of death in the Protection of Life during Pregnancy Act of 2013.

23. Cantor J, Baum K. The limits of conscientious objection—may pharmacists refuse to fill prescriptions for emergency contraception? New England Journal of Medicine 2004;351:2008–12, at 2011.

24. See note 23, Cantor, Baum 2004, at 2009.

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27. One such instance is the Dana L case. Dana L. What happens when there is no Plan B? Washington Post June 4, 2006:B01. This case is discussed in my previous work; see note 1 Card 2007, at 10.

28. There has been relatively little discussion in the literature regarding justification for conscientious objection in medicine. One notable exception here is Kantymir L, McLeod C. Justification for conscience exemptions in health care. Bioethics 2014;28(1):16–23. However, their focus is to find an alternative position between two views that they call “proving genuineness” (genuineness view) and “proving reasonableness” (reasonability view), not to argue for why justifications matter. I am not convinced by their criticisms of my view; however, that is not my focus on this occasion. The present article seeks to begin to fill a lacuna by both critically reviewing the literature and offering an argument for the inevitability of reasons assessment in conscientious objection in medicine. For more on their treatment, see Kantymir, McLeod 2014.

29. See note 1, Card 2007, at 13.

30. See note 1, Card 2007, at 13.

31. It should be made clear that this policy suggestion is, in principle, separable from the reasonability view. It is simply one way to instantiate the reason-giving and reasonability requirements. The reasonability view and the policy proposal to establish CO status within medicine are distinct claims that stand and fall independently on their own merits.

32. One might wonder what is meant by publicity here and why I advocate it. To borrow from the military context for a moment, earning CO status is a public designation. In the United States, if an individual earns an army classification of 1-0 (CO status asking for separation from service) or 1-A-0 (reassignment to noncombatant training and service status based on CO status), this is a public certification. Of course, I appreciate the many differences between the military and medical contexts. However, I think that if a practitioner is granted CO status with respect to providing a certain medical good or service that should also be a publicly discoverable fact; this individual is asking for an exemption from what would otherwise be a professional obligation. This could be accomplished by (for example) constructing a website that is searchable by patients and other healthcare providers. One might object that making this designation public runs the risk of physicians who have been granted exemptions being threatened for their beliefs in person or receiving hate mail, and I think that this is a live concern. However, this negative is outweighed by the advantage that patients would be able to discover what moral objections (if any) their provider possesses and any exemptions he or she has received in advance of the clinical encounter. This would greatly assist in efforts to prevent crises of conscience before they occur. Further, this public registry should also be searchable by fellow medical professionals. That way, in the event that a professional must refer a patient, it can be done effectively and, again, prevent a crisis of conscience before the fact. Further information on conscientious objection in the United States Army is available at http://www.apd.army.mil/jw2/xmldemo/r600_43/main.asp (last accessed 8 Jan 2016).

33. For a more detailed discussion of the notion of reasonability on my view, see Card, RF. Reasonability and conscientious objection in medicine: A reply to marsh and an elaboration of the reason-giving requirement. Bioethics 2014;28(6):320–6.CrossRefGoogle ScholarPubMed

34. See note 33, Card 2014, at 325.

35. See note 15, Dickens, Cook 2011, at 165.

36. Rawls, J. Political Liberalism. New York: Columbia University Press; 1996:59–66.Google Scholar

37. Notice that there could be a host of reason-giving views, ones that require the statement and assessment of one’s grounding reasons; one could offer numerous different standards for what constitutes a sufficiently good reason to generate an exemption. The reasonability view is simply such a view that utilizes reasonability as the relevant standard of adjudication.

38. See note 7, Fernandez Lynch 2008, at 237.

39. I take Mark Wicclair to offer just such a “refined” sort of view in his work on conscientious objection. In some places he seems to defend a refined referral view; however, he also expresses reluctance to require a referral if it is possible to preserve the provider’s integrity without cost to the patient’s well-being, thereby seeming to lean in the direction of a refined genuineness view. Most importantly for present purposes, Wicclair does not think one should assess providers’ reasons, opting instead to give providers “considerable latitude concerning what is and is not a valid reason for a conscience-based refusal.” (See Wicclair, MR. Conscientious Objection in Health Care. Cambridge: Cambridge University Press 2011:92–99 CrossRefGoogle ScholarPubMed, at 92). However, he places a few limitations on acceptable reasons by not favoring an exemption if the refusal is (1) incompatible with the goals of medicine, (2) based on demonstrably false beliefs, or (3) is premised on invidious discrimination. Regardless of whether he accepts a referral view or a genuineness view as his foundational position, the argument I have made directly applies to Wicclair’s view or any other view in the debate that attempts to argue that certain reasons do not justify an exemption, yet tries to avoid becoming a reason-giving view. See also Wicclair MR. Managing conscientious objection in health care institutions. HEC Forum 2014;26:267–83.

40. This task was engaged in Card 2014 (see note 34). This project is carried through in Justification and Reasonability: Conscientious Objection in Medicine (manuscript in preparation).