Military and Medical CO: Why the Existence of One Does Not Necessarily Support the Other

One might argue based on an analogy that since those who oppose killing humans in combat can be granted military CO status, those who oppose the killing of human life in medicine should have a comparable privilege. For example, Julie Cantor and Ken Baum, defenders of a Referral View, appeal to just such an argument in a discussion supporting conscientious exemptions for pharmacists who oppose dispensing EC: “like the draftee who conscientiously objects to perpetrating acts of death and violence, a

From Objections to Exemptions 181 pharmacist should have the right not to be complicit in what they believe to be a morally ambiguous endeavor” (2009). If we use the Supreme Court’s jurisprudence relating to military CO to frame the associated policy, I will argue that individuals who refuse to dispense EC would not earn a comparable exemption. Refusals to dispense Plan B constitute a fascinating case study that allows us to see the both the core similarities and differences between the two contexts. In the case at hand, I argue that since legal precedent holds one must consistently object to all forms of the relevant activity, such objecting professionals must also oppose morally innocuous practices that may prevent pregnancy after fertilization. But even if this argument fails, we have good reasons to reject the analogy itself. This reasoning focuses my argument for exactly why I am advocating that we should establish CO status in medicine as the policy to deploy the Reasonability View; I will highlight this policy’s advantages later in the chapter.

Proponents of the argument under consideration claim that if we support the existence of military CO status, then we should model public policy regarding conscientious refusals in medicine on the basis of this legal precedent. After all, while objectors may propose to lay claim to a moral right, they also advocate for conscientious refusals to be legally protected; in many instances objecting medical practitioners seek immunity from damage awards or professional censure. As we learned in the last section, there are two essential conditions for attaining military CO status: genuineness and consistency. One might argue, therefore, that since those who seek conscientious exemptions in both the military and medical realm share the same strong opposition to taking human life, we should use the established conditions for military CO status in order to extend medical CO status to providers who are opposed to dispensing EC.

If we assume, along with defenders of conscientious refusals of EC, that their objection is analogous to fighting in a war with which they morally disagree, then the jurisprudential line of reasoning just sketched is not a very promising avenue of support for refusals of EC. The objection to providing EC, in its most general form, is contributing to that which has the possibility of killing zygotes—and as such is claimed to constitute harming human life in opposition to the Hippocratic Oath (Stein, 2005). Yet on the Gillette line of reasoning the objection must be to any form of activity of that sort; this requires in this context that one object to all relevant activities that pose a threat to zygotic life.⁴ Discussions of EC pills have made clear that while it seems that they act primarily by delaying or inhibiting ovulation (Croxatto et al.), it is possible that all may act after fertilization—a point that causes much of the heated debate (Glasier). If we use the Gillette precedent as our foundation, then, supporters of CO regarding EC must be opposed to any action that poses a threat to zygotic life.

Bur such a view has odd consequences: this criterion should lead EC opponents to reject breastfeeding on moral grounds, since this has a proven association with extremely low pregnancy rates and has a mechanism of action that may act after fertilization. Diaz et al. studied postpartum women who experienced lactational amenorrhea—an abnormal stoppage or absence of menstrual flow—associated with decreased fertility given the low incidence of ovulation during the amenorrheic period. They examined the ovulation rates and cumulative probability of pregnancy for a sample of fully nursing women; approximately two-thirds of the women were amenorrheic six months postpartum and their ovulation rate and probability of pregnancy during this period were 27.7% and 0.9%, respectively (Diaz et al. 502). While only approximately one-quarter of the amenorrheic women ovulated and their cumulative risk of pregnancy was less than 1%, after the first postpartum menses, 97% of these women ovulated and the cumulative probability of pregnancy was 7% (Diaz et al. 501). An abnormal hormonal profile and a shorter luteal phase—the time during which the uterine lining develops and thickens in preparation for possible implantation of an embryo—were observed in such women, providing protection against pregnancy for women who ovulate during lactational amenorrhea within the first six months of giving birth.⁵ Interestingly, breastfeeding has lasting effects on becoming pregnant: as lactational amenorrhea ends and such women begin to resume normal ovulatory cycles, a decreased risk of pregnancy was noted. As Diaz et al. (503) state:

For a short interval at the end of amenorrhea, breastfeeding prevented pregnancy in ovulatory cycles. Interference with implantation associated with luteal phase defect seems the most plausible explanation.

This is a clear statement that lactational amenorrhea can in fact have a post-fertilization effect. In essence, the shortened luteal phase resulting from breastfeeding serves to prevent or interfere with implantation, thereby potentially resulting in the loss of zygotic life. It is worthwhile to summarize the chain of reasoning just offered. It is not the case that all women who choose to breastfeed will experience lactational amenorrhea; in fact, it is not known in advance the women in which this will occur. However, choosing to breastfeed may lead to lactational amenorrhea, and lactational amenorrhea may lead to the killing of early human life. Therefore, choosing to breastfeed may lead to the killing of zygotic life, and as such, for the sake of consistency breastfeeding must be opposed by those who object to EC on these same grounds. Using the objector’s logic, a woman’s choice to use EC mirrors her choice to breastfeed her newborn, and both are morally wrong.

This would imply that objecting medical providers should deny supportive care to women who choose to nurse their infants and are sexually active with their mates. While medical providers such as physicians, nurse practitioners, and nurses with this belief system should refuse a range of care, the clearest case for pharmacists would include refusing to dispense prescription drugs (e.g. Reglan) used to attain adequate milk supply in lactating women. For such objecting physicians, they must not answer questions posed by women having breastfeeding difficulties and should not write prescriptions for medications such as Reglan. In fact, such medical professionals should not advocate breastfeeding at all if the woman intends to have sexual intercourse with her partner and hence be at risk of becoming fertilized. This is absurd. Such a result blocks opponents of EC from appealing to the well-developed body of law regarding objection to combat to build their case for conscientious exemptions to dispensing EC.

Another argument along these lines is presented by Luc Bovens (2006). Bovens argues that the “rhythm method” of contraception may be responsible for at least as much embryonic death as other methods of birth control. His basic argument is that if we make a few “relatively innocent” assumptions, then we must conclude that the rhythm method should be deemed equally as unacceptable as abortion and the “morning-after pill” by pro-life advocates. The first assumption he makes is that there are many conceptions that never result in missed menses (Bovens 355). Various studies relied upon by Bovens conclude that only 50% (and perhaps as few as 20%) of conceptions actually lead to pregnancies (French and Bierman; Hertig). The second assumption is that the rhythm method can fail if unprotected sexual intercourse occurs in the last days before and the first days after the prescribed abstinence period (Bovens 355). His third assumption is that there is a greater chance that a conception will lead to a viable embryo if it occurs in the center interval of the fertile period than if it occurs at the beginning or end of this period. Since we know there is a high embryonic death rate, this point seems to be intuitively plausible, according to Bovens, since an embryo resulting from an (e.g.) “old” sperm that is also trying to implant in a uterine wall that is less receptive is likely to be less viable than an embryo that is created at the center of the fertile period (i.e. the heightened fertility (HF) period). This discussion brings out the interesting hypothesis that the rhythm method may owe its efficacy (at least in part) to the lesser viability of embryos created outside of the HF period. As Bovens (355) puts the point,

Rhythm method users try to avoid pregnancy by aiming at the period in which conception is less likely to occur and in which viability is lower. So their success rate is due not only to the fact that they manage to avoid conception, but also to the fact that conceived ova have reduced survival chances.

Bovens presents a reasonable case to support the claim that the rhythm method can lead to zygotic death,⁶ and his points are general enough to apply to other methods of Natural Family Planning (NFP). Since we have not seen a campaign against the rhythm method by opponents of EC— and are unlikely to see this since many of these same individuals are supporters of the rhythm method or a related method of NFP—this shows an inconsistency in the objection lodged by those who are conscientiously opposed to EC since they believe it ends zygotic life.

If either of these examples concerning breastfeeding or the rhythm method is plausible, then the objector to EC should not have his or her objection honored based on the jurisprudential framework derived from consideration of the military context. Since he or she is not opposed to participation in all activities that threaten zygotic life, this prevents supporters of CO regarding EC from possessing a consistent position worthy of accommodation on this line of argument. Even if such practitioners would be willing to extend their objection to include these two cases, these examples then simply show the absurdity of premising an objection upon the small probability that a post-fertilization effect may result from an activity. In the former case, the refusal undermines a choice made by a mother about her own body that has beneficial effects for her infant. In the latter case, the medical provider must (e.g.) refuse to help a woman determine her ovulatory cycle since this may lead to the use of an objectionable form of birth control given the practitioner’s beliefs. Yet women have numerous reasons for wanting to know their ovulatory cycle, not all of which are related to contraception. Therefore, an unconditional refusal of this request is unreasonable and violates the standard of care. Since significant legal precedent demands that petitioners make the basis of their objection general in form, these absurd results uncover a crucial weakness in an argument that utilizes a comparison to conscientious objector status to military combat.

The main objection I anticipate to the argument in this section is as follows: the claim that EC kills an embryo is not similar to the implications of the breastfeeding or the rhythm method cases, since even if the latter practices create a higher expected zygotic death rate, this does not imply that the medical practitioner is directly involved in a killing. In other words, the enabling medical professional does not intentionally harm zygotic life by giving supportive care to women who breastfeed or use the rhythm method, while it can be said that dispensing EC involves intentional harm. Therefore, there is no inconsistency in approving of these other practices but opposing EC.

In reply, it is outside the scope of this chapter to tackle the question of the intrinsic moral relevance of intentions, but this does not prevent

From Objections to Exemptions 185 me from offering a plausible response to this criticism. The first point is that given the present argumentative strategy, it makes perfect sense to not focus upon intentions since these do not play a substantial role in the jurisprudential framework for assessing candidates for CO status. A reference to intentions was not included in the legal model for military CO derived earlier; the objection must simply be general in form and premised upon a sincerely held belief. The Court does not grant an exemption based on whether or not a petitioner believes he or she is engaging in intentional killing when participating in combat. Imagine someone who agrees with involvement in a particular just war and would not view their sort of participation in combat activities as intentional killing. The fact that individuals on the other side died was not intended but the act was instead performed by the individual simply to protect his country. Now imagine two individuals who subscribe to this line of reasoning, except that the latter believes that the war in question is not a just war. As a result, this latter person holds his participation to be immoral and may think that he would be engaging in intentional killing in war, not simply acting with the intention of protecting his country. In both cases, the intentions of these petitioners are irrelevant from the point of view of the law that governs the granting of such exemptions—neither person would be given CO status on the military model being used since both engage in selective CO. This result holds despite their differing beliefs regarding whether their participation constitutes intentional killing. My task at this juncture is simply to apply the jurisprudential model for military CO to see what it would imply regarding CO in the medical context. I have not questioned the sincerity of objectors to EC but instead have argued that they cannot offer a both consistent (in terms of general CO) and plausible objection to EC based on the reasoning that this medication poses a risk to early human life.

Further, it is reasonable to think that the medical professional is involved in killing when dispensing EC—if it is the case that EC has postfertilization effects⁷—yet to make this determination strictly in terms of intentions is dubious at best; the degree of closeness to the effect seems to be the most salient factor. Just as there is some distance between giving supportive care to women who breastfeed and rhe effect this might have on a possible conceptus hosted by such a woman, there is some distance between dispensing EC to a woman who will herself decide whether to take the pills with the purported result that a zygotic life is ended. She may not in fact become fertilized in any case and hence taking EC will cause no harm ro zygotic life. The professional who helps a woman determine her ovulatory cycle or dispenses Reglan is in a position sufficiently similar ro a practitioner who dispenses EC pills to a woman—both provide a means that, assuming the relevant beliefs are true, then may cut short a zygotic life. This suggests that the EC case, the breastfeeding case, and the rhythm method case belong in the same class: either the provideris not sufficiently involved and none of these practices possess a chance of harming zygotic life, or (as I think) all of these ought to be sufficiently worrisome to a medical provider with the moral belief system characteristic of conscientious objectors to EC.⁸ In either case, the argument supporting conscientious objection to EC based on the jurisprudential line of reasoning under consideration fails.

Finally, it is worth emphasizing in response that the most vocal defenders of medical professionals’ rights to conscientiously refuse to dispense EC do not frame the debate in terms of intentions or relative degrees of involvement, but instead in terms of consequences. Karen Brauer, the president of Pharmacists For Life International, opposes dispensing EC since it harms human life (Stein, 2005). She also rejects the notion that there is an intrinsic moral difference between doing an action oneself versus producing the same result through a more indirect role, as I discussed earlier (Chapter 2) in her example of killing versus referring another person to a hired assassin who will complete the deed. Clearly, such a referral would put more distance between one’s own act and the purported negative outcome, yet Brauer rejects the moral significance of this move. Neil Noesen, a Wisconsin pharmacist who was fired because he refused to fill or transfer a prescription for a hormonal contraceptive, takes a similarly broad view on the level of participation necessary for that contribution to be immoral. When he was called by another pharmacist regarding the prescription he refused to fill, he refused on moral grounds to transfer the prescription since he believed that would constitute “participating in contraception” (Rohde). While many thoughtful individuals might wish to factor in the moral relevance of intentions in such controversies, the fact that providers may be able to distance themselves and hence not be said to have intended the final outcome seems beside the point for such actual objectors.⁹ These arguments by conscientious objectors are focused on harm—the putative harm caused to the zygote and the harm caused to professionals who do not wish to contribute to a result they believe is immoral.

Up to this point, I have assumed for the sake of argument that the analogical argument regarding military CO and conscientious objection in medicine is workable; we have discovered this leads to absurd results and would not in fact exempt medical providers who object to EC. Yet if we find that the analogy between CO with respect to EC and CO regarding combat is not apt, then this comparison does not provide a compelling argument for honoring conscientious refusals of care in the medical context. Upon reflection, it does seem that there are significant disanalogies between CO regarding EC and regarding war. First, medical professionals voluntarily choose to enter into (and continue in their) field of work, while this may not be the case for those who conscientiously object to military service. Part of the force of the objection by the objector to military combat derives from the fact that this person cannot simply quit and

From Objections to Exemptions 187 may be subject to court martial and probable prosecution and imprisonment if determined to have deserted the military. By contrast, those who conscientiously object to EC claim that they should not be made to fulfill their professional responsibilities even though these were willingly assumed, and should not be disadvantaged in any way in terms of their career (e.g.) by being given a formal reprimand. This is an unreasonable request. If one wishes to use the model of conscientious objection to gain an exemption, that individual must be willing to bear the consequences of his or her refusal. Thinking otherwise gets things backwards because then the patient, not the objecting medical professional, pays the cost of the refusal by being denied access to legally available, medically indicated, and safe services.

One might object that military personnel in the 21st century do voluntarily enter into the service since there is no draft, and therefore there is no disanalogy. The point is well taken, but this point actually supports the disanalogy. Consider the situation of many reservists who signed up in the late 1990s as a means to help afford college tuition. Anyone who signed up for military reserves should have understood that he or she could have been ordered into combat. Clearly, the initial choice to sign up for the reserves was a voluntary choice, and by extension one can understand that acceptance of the possibility of being called up for combat duty was also sufficiently free. To later claim an objection could be considered a breach of contract and—depending on the context—it might even make the person criminally liable. Considering this case reveals that conscientious objection has its clearest force in a non-voluntary context such as that found in a conscripted military—yet since all who enter the health care professions do so voluntarily, the comparison that conscience-based objectors to EC attempt to draw to conscientious objection by a potential conscript fails.¹⁰

Second, unlike petitioners for conscientious objector status within the military, those who refuse to dispense EC are under no obligation to explain their conduct and to offer reasons in support of their claim. As I have pointed out, it is not unreasonable in the public sphere to ask for reasons, and it is not unreasonable to assess one’s reasons if the cost of honoring one’s refusal is significant. As various accounts in the US media have made clear, the costs to women of conscientious refusal of EC by medical professionals are weighty. For example, a rape victim in Texas was refused EC and a Virginia woman who was denied EC became pregnant and as a result had to face a traumatic abortion decision (American College of Obstetricians and Gynecologists). In contrast to those who conscientiously object to EC currently, petitioners for military CO must present their reasons to a Review Board for assessment and face prison time if they decide to follow their conscience in the event that their petition for CO status is not granted. Medical providers who decide to follow their conscience and refuse a patient’s request do not bear the burdenof proof and face virtually no repercussions for this decision in present circumstances.

Third, such a right to CO seems boundless and may lead to discrimination. If we allow such claims, then we might be faced with an impossible scenario where we can merely attempt to accommodate all of the “conscientious objections” that might be lodged. This would include (e.g.) those by police who do not want to investigate or prosecute instances of “gay bashing” or real estate agents who do not want to sell a house to an inter-racial couple (LaFollette and LaFollette 251). Rebecca Dresser (9) imagines cases in which a practitioner conscientiously refuses to retrieve organs from patients declared dead by whole-brain criteria or to assist with prenatal diagnosis. There seems to be no logical limit to such claims of conscience. Is it within the rights of medical providers to conscientiously refuse to utilize reproductive technology for adults because the intended couple is gay or for a pharmacist to refuse to fill prescription requests for Viagra from unmarried men? Such cases seem outrageous; labeling them “conscientious objection” appears merely to be window-dressing for cases of discrimination based on sexual orientation or unjustified meddling with patient autonomy. These absurd consequences might appear to stem from fanciful examples, but they are actual cases of conscientious refusal reported in the US (North Coast Women’s Care Medical Group; Stein, 2006).

Finally, unlike military objectors, those who refuse to dispense EC do not perform “alternative service” to compensate for those duties they fail to perform. Yet successful petitioners for military CO must still serve either in a non-combatant capacity (e.g. as a member of a medical unit) or outside of the military in some charitable capacity (e.g. working in education or health care) as part of “alternative service.” By contrast, those who claim a right to CO regarding EC do not offer nor do they expect to undertake any activities to compensate for their refusals. This shows that such professionals want conscience without consequences— no costs are borne by the objector, but instead, the harm accrues to the women who are refused the medication. None of the many state laws that protect provider conscience mandate any alternative service. This bespeaks a lack of understanding regarding the gravity of asserting a conscientious objection.

One could argue that despite these disanalogies, there remains a compelling similarity: the fact that dispensing EC and participating in war both involve a significant chance of killing a human person.¹¹ This argument is premised upon the idea that EC does in fact prevent a fertilized egg—presumed to be a human person—from implanting. This empirical claim is false, however, as I have discussed at length in Chapter 3, since there is no good reason to accept the claim that Plan B’s main mechanism of action occurs via post-fertilization effects.

We should be skeptical of the claim that an individual human life would end as a result of a medical professional dispensing EC. If we recall my earlier discussion of the zero-probability argument in Section 3.2, during the window period for Plan B (72 hours) or ella (120 hours), one cannot in principle know whether a conceptus in fact exists, since this event will not be detectable by measuring levels of human chorionic gonadotropin until at least a week after fertilization (Wall and Brown 1150). The fact that a putative medical objector cannot even know whether the individual he or she objects to harming exists, at the time of asserting the conscientious objection, may reveal the most significant disanalogy between the medical and military contexts. Certainly, a military CO may object to firing mortars or dropping bombs even though he or she may never in fact kill another person. Yet a person conscientiously objecting to combat certainly knows at the time of petitioning that the subjects he or she objects to possibly harming are individuals in existence. While I grant for the sake of argument that the conceptus is a person with full moral standing, it is difficult to take a claim for CO status seriously in a case where one cannot know whether harm is even possible to the purported subject of the conscientious objection at the time of lodging the objection. For all of these reasons, the analogy between CO with regard to EC and participation in combat fails.

We have learned in this section that if we take the analogy between conscientious objection with respect to EC and combat seriously, then the requirement of consistency applied to public policies regarding such claims of conscience implies that supporters of conscientious objection regarding EC would not be granted a conscientious exemption and must be opposed to practices that are morally innocuous. If we take a more critical stance, we see that there are good reasons to reject the analogy itself. The conscience-based claim regarding EC fails to satisfy the juris-prudentially established requirements for conscientious objection and, even if it did, fails to draw an apt analogy to conscientious objection regarding military service. Either way, these findings undermine attempts to use the jurisprudential argument based upon military CO to support conscientious refusals of EC. I do not argue, then, that we should establish a policy of medical CO status because of the existence of military CO status. Instead, I argue that this policy proposal possesses numerous independent advantages, and the next section begins to elaborate these and explore the nuts and bolts of how medical CO status should be created.