Referral View
The Referral View states that a conscientious objection is acceptable if there is referral to a willing provider. In a prominent essay defending this view, Julie Cantor and Ken Baum focus on pharmacists’ refusals to dispense emergency contraception (EC), but their view seems to be generalizable to other sorts of health care professionals and contexts. Cantor and Baum weigh the arguments for and against a professional’s right to conscientiously object and conclude:
Although we believe that the most ethical course is to treat patients compassionately—that is, to stock emergency contraception and fill prescriptions for it—the totality of the arguments make us stop short of advocating a legal duty to do so as a first resort. ... As a general rule, pharmacists who cannot or will not dispense a drug have an obligation to meet the needs of their customers by referring them elsewhere. This idea is uncontroversial when it is applied to common medications such as antibiotics and statins; it becomes contentious, but is equally valid, when it is applied to emergency contraception. Therefore, pharmacists who object should, as a matter of ethics and law, provide alternatives for patients.
(2011)
Cantor and Baum clearly state that there should be no mechanism to legally coerce professionals to act in ways inconsistent with their beliefs. Their position is that objectors have a professional ethical duty to refer patients, and US policy should be established such that there is a legal duty to refer in instances of conscientious objection. This is their conclusion despite the fact (as Cantor and Baum [2004] discuss) that there is no strong scientific evidence supporting the idea that EC is an abortifacient9—yet the objection to Plan B consists in the claim that EC causes an abortion (orits moral equivalent) and therefore dispensing this medication constitutes participation in murder. Cantor and Baum instead suggest a number of creative policy alternatives such as requiring advance notice of an objection by signage posted at the pharmacy, asking physicians to fill gaps in care left by objectors, and advocating that physicians discuss EC during office visits and educate patients by pointing to websites such as www. not-2-late.com that allow users to locate a willing provider in their area.
The Referral View possesses a noteworthy advantage since referrals can make sense when they are practical. In such an event, providers will not have to violate their conscience, both the provider and the patient may be more at ease, and the patient may perhaps receive better care. The Referral View is currently the status quo position, yet I am going to suggest it is not a good solution to the conscience dilemma. One disadvantage is that if this approach is utilized, access to services in rural areas may suffer. In fact, it is too generous to assume that only access in rural areas would be affected in cases such as abortion provision. As observed by Francesca Minerva, in places such as Italy, 70% of gynecologist obstetricians are opposed to abortion, even though the law formally protects women’s access. In the US, 89% of counties lacked an abortion provider in 2011. While defenders of the Referral View simply state that of course access to legally available services is key, they cannot guarantee that patients will always have access to the health care they require since conscientious objection to a certain service may be prevalent in some places. While this position can lessen the burdens on patients as compared to the Genuineness View, the costs of conscientious objection are again primarily borne by the patient and not by the petitioner for an exemption—the opposite of what should be the case in conscientious objection, as discussed earlier. Since the exemption is granted in the form of arranging alternate provision of clinical options and information to the patient or possibly referral to another provider, in either case the patient must spend additional time and financial resources to receive medical services that are legally available and have been deemed safe and effective.
Further, a provider’s objection can be insurmountable in practice with respect to medications such as EC, due to the short window period during which the drug can be effectively used—72 hours after sexual intercourse for Plan B and five days for ella. Such an objection can be tantamount to obstructionism; there are published cases in which women have had to deal with the fallout of being placed on the conveyor belt of referrals and thereby not receiving EC quickly enough for it to be effective.10 In such instances, the Referral View unreasonably privileges the provider’s beliefs over the patient’s beliefs and needs—and may place the patient in a more morally precarious position. For instance, imagine a case in which a provider refuses to dispense EC to a woman who finds abortion morally problematic yet is comfortable with using contraception, and the woman becomes pregnant. The provider has privileged his moral values
The Inescapability of Reasons-Assessment 65 over the patient’s values and has placed the patient in the morally difficult position of having to face an abortion decision or carry an unwanted pregnancy to term—a position she tried actively to avoid by seeking out Plan B. This physician has also placed this woman in a more physically precarious position, since either option now available to this woman is more dangerous than taking EC. Such actions are at the very least unfair and at worst an abandonment of the patient and an abdication of the practitioner’s professional ethical responsibilities.
The Referral View privileges providers’ beliefs in this way, yet it does not examine providers’ reasons. What if they rest on false beliefs? A provider might, for example, refuse to dispense EC because he or she mistakenly thinks that its primary mechanism of action is to dislodge an implanted embryo. On the Referral View, a provider’s false belief would be given precedence over the genuinely held and empirically correct belief of a female patient requesting Plan B because she wishes to use a contraceptive. These implications constitute sufficient reason to not blithely adopt the Referral View.
Dan Brock offers another take on a Referral View, and his defense of the position is telling regarding the primacy we should assign to patients’ interests and the shape of an acceptable position on conscientious objection in medicine. Brock refers to his stance as a “conventional compromise” wherein, basically, the doctor must be sure to inform the patient of all clinically relevant alternatives, refer the patient to a willing provider, and ensure that the referral does not pose an undue burden on the patient (194). Brock’s discussion of the referral view is noteworthy because he analyzes cases of conscientious objection involving “questionable” beliefs. I will focus upon one of his examples to highlight this aspect of his view. Brock (190) asks us to imagine Dr. B, an emergency medicine physician who works in an emergency department (ED) and has recently converted to the Jehovah’s Witnesses religion. Dr. B now conscientiously refuses to give a blood transfusion, in accordance with the beliefs of her new religion. Should Dr. B be granted a conscientious exemption? Brock thinks the answer is “No” because transfusing patients is a central part of her job and she has voluntarily accepted the associated obligations of being an emergency physician. Regarding whether Dr. B is required to refer the patient, Brock says:
Should the hospital instead have to seek to accommodate Dr. B’s new belief about transfusions, for example, by permitting her to withdraw from a patient’s care whenever a transfusion was required and have another physician take over the patient’s care? I believe that such accommodation would be beyond what is reasonably required, or even acceptable, because it would risk significant harm to patients to have their care transferred in this wav under emergency conditions.
Brock clearly rejects the acceptability of a referral in this case. To this extent, he seems to be stepping away from the Referral View by engaging in some assessment of the justifiability of the objection; after all, he specifically refers to the harm that can be caused by referrals in the ED. Yet this case, upon closer inspection, does not vindicate this understanding of Brock’s approach. First, Brock has specified that this is an ED physician and that the transfer of care would be under emergency conditions. Not allowing referrals (and perhaps even requiring performance of the contested procedure) in emergency instances is among the least controversial cases in discussions of conscientious objection; almost no one (including Cantor and Baum) thinks that a health care professional may refuse care to a patient under emergency circumstances. I think Brock is on the right track by pointing to the relevant harm when rejecting the acceptability of an accommodation. A key question to help us get a handle on whether Brock engages in assessing the justifiability of an objector’s reasons is this: would Brock be willing to argue that a referral would be unacceptable in the case of Dr. B that did not occur in emergency circumstances (and Dr. B was not an ED physician)? We simply do not know the answer to this question from Brock’s discussion in this article. Emergency cases stand on their own; even the most permissive defenders of conscientious objection acknowledge the imperative to treat based on the harm involved in such cases, an obligation ensconced in law in the US (EMTALA), and a duty founded in morality.
Looking at other aspects of Brock’s discussion, however, we can surmise that Brock would likely not be willing to block an accommodation in a non-emergency case if the physician could satisfy the conditions of the conventional compromise. Regarding harm, from Dr. B’s perspective the harm involved in giving the blood transfusion is greater than refusing the blood transfusion; after all, the former harm allows an impure substance into the body and therefore the provider claims that this is participation in condemning a person to hell on the Jehovah’s Witnesses religion. Therefore, in a non-emergency case, the argument from harm would not likely be one that Brock would deploy since from Dr. B’s perspective, the patient is allegedly harmed more by giving the blood transfusion than by not doing so. Depending upon the perspective Brock would use to weigh the relevant harms, his view could grant Dr. B an exemption in the form of a referral, a conclusion that is difficult to defend. This is the case as long as the conditions for the conventional compromise were met— especially the condition regarding the referral not constituting an undue burden on the patient (which is so in the emergency case). Given that Brock would likely not want to reject Dr. B’s perspective on weighing the relevant harms out of hand (since this would undermine the entire point of discussing conscientious exemptions for her), the case is murkier than it first appears. In any case, Brock (189) makes clear in this discussion that he does not look to assess whether objectors’ reasons are justified:
As Mark Wicclair has correctly argued (in my view), these claims [to act in accord with conscience] must be grounded in the importance of individuals’ moral integrity. . . . Maintaining her moral integrity then requires that she not violate her moral commitments and gives others moral reason to respect her doing so, not because these commitments must be true or justified, but because the maintenance of moral integrity is an important value, central to one’s status as a moral person [bracketed text added].
So, while Brock offers the view that comes closest to engaging in assessment of reasons, he does not do so. As I shall now discuss, highlighting this refusal suggests an important insight.
