The Medical Conscientious Objector Board and the Duties of Providers Granted CO Status
To establish CO status in medicine, we should create a mechanism similar to the Review Board that is used to adjudicate petitioners’ claims for
CO status in the military. My suggestion is that we create a medical conscientious objector review (MCOR) board that convenes to hear cases in which medical providers present and explain their objection.12 The job of the MCOR board is to assess medical practitioners’ petitions and to decide whether or not to extend or deny a conscientious exemption to that provider. An MCOR board would not simply try to determine whether the medical professional’s belief is genuine and that the provider lodges a general conscientious objection by opposing all relevant forms of the “objectionable” activity, as in the military CO model, for the reasons given in the last section. While I retain the genuineness condition, I do not unconditionally reject selective CO within medicine—after all, some providers may object to hastening death given the particularities of some cases or for specific medical conditions and not others and this seems understandable—and hence repudiate the generality condition of the military CO model. Instead of using the conditions for military CO when deciding whether to grant an accommodation, these review boards would use the criteria for reasonability presented in Chapter 3. If an exemption is granted, it will be instantiated as a condition on licensure. My provisional suggestion is that MCOR boards could be established, therefore, as a subsidiary of the licensing board for each state that is already in place to adjudicate claims of malpractice or other professional matters for medical providers. Each state, then, would have an MCOR board that is part of an already existing institution, and that entity would be the administrative body to which petitions for medical CO status would be filed. Further, patients’ complaints about conscientious refusal would be referred to this body if they were said to constitute unprofessional conduct akin to patient abandonment or medical malpractice. This suggestion does not multiply entities needlessly and uses existing resources to establish the review process necessary to begin hearing medical providers’ petitions for medical CO status.
How would this board be constituted, and how would it work? It should consist of medical professionals such as physicians, nurses, and pharmacists, since there will be matters of empirical fact that need to be adjudicated to ensure that the empirical consonance condition is met. The board should have bioethicists trained in philosophy and religion as well as members trained in law to systematically yet compassionately probe the medical provider’s reasoning and to ensure that if a petition was granted that this would be within the bounds of the law. Community members should also be members of the MCOR board. The idea of establishing CO status in medicine occurred to me after learning of the case of Neil Noesen, the Wisconsin pharmacist who in 2002 refused to dispense birth control to a college student named Amanda Thiede and who also refused to return her prescription. When Thiede was asked about her refusal experience, she said of Noesen: “He was talking about conscientious objection and war and killing people and how that meant he couldn’t fill my prescription. ... I thought he was joking at first” (Rohde). Noesen faced punishment for his actions; as the American Civil Liberties Union summarizes the result,
The state Pharmacy Examining Board subsequently disciplined Noesen for his failure to adequately inform his employer of his religious objections to participating in the filling of prescriptions for contraception and for his refusal to promptly transfer this prescription to another pharmacy.13
Noesen’s discipline consisted of a condition being placed on his license that he tell any future employers of his religious beliefs, that he enroll in an ethics course, and that he pay the $21,000 cost of the legal process (Rohde). Noesen subsequently sued the Pharmacy Examining Board for religious discrimination. The US Court of Appeals held in 2008 that this discipline was justified since Noesen’s actions violated the standard of care for pharmacists and that medical professionals such as pharmacists can be required to act in a competent manner since this enhances patient autonomy, protects public health, and promotes women’s equality (American Civil Liberties Union).
Notice that the discipline consisted of placing conditions on this medical professional’s license to the effect that he must inform future employers that he holds beliefs that may not allow him to fulfill job-related duties. Establishing CO status in medicine would address this task since the practitioner’s license would carry a condition that he could not dispense (say) emergency contraception since he had been granted a conscientious exemption. Also, by the formal establishment of an MCOR board that is a subsidiary of the medical licensing board, the general idea which Noesen was attempting to relate to his patient concerning conscientious objection would be made more familiar to the public. Creating medical CO status along the lines I suggest introduces the idea that medical professionals have a reasonable right of conscience and makes the public aware that there is an administrative body to which they should report worrisome incidents of conscientious refusal by medical professionals.
The only similar proposal for a review board of which I am aware is made by Christopher Meyers and Robert Woods (1996), though as discussed in Chapter 2, they propose utilizing a genuineness standard for granting conscientious accommodations: “Borrowing, in part, from the guidelines established for the draft board, we therefore recommend a review board be established to evaluate claims of moral objection to providing abortions” (118). They never specifically suggest establishing CO status in medicine, and their focus is exclusively on abortion provision, though one can see the relation of their idea to my policy suggestion. Meyers and Woods helpfully suggest that the review board be structured so as to have members who represent a diversity of religious, racial, ethnic, and academic training. They note that there should be experts in mental health, social work, and community members as well (119). They finally add that there should be a stepwise process in which the process begins at an informal level, with the board (or subset of the review board) meeting with the petitioner to hear and discuss the objection and assess the medical provider’s grounding reasons. If the petitioner is not satisfied with the result, the matter is to be taken up by the full review board, a meeting during which the petitioner can have legal counsel present. Finally, in the case of an irresolvable dispute, the case can be reviewed by the relevant court(s). These are good policy suggestions and I will help myself to them in my proposal to establish an MCOR board for adjudicating petitions for medical CO status.
However, we should add to the review board individuals with expert knowledge on access to medical services in the relevant state, county, city, or town, since the MCOR board looks at both the intrinsic features of the objection as well as the extrinsic features bearing on accommodating the objector’s conscience claim. To assess the latter, the MCOR board should include public health experts or social workers to assess the availability of medical services in an area to determine the impact of granting a particular conscientious exemption. As such, the MCOR board attempts to balance providers’ interests in not violating their own ethical beliefs with patients’ rights of access to legally available, medically indicated, and safe services. Once an MCOR board is established, it will be made known to all medical professionals that if one expects to lodge a conscientious objection, she should petition the board for CO status with regard to providing that service. In this way, the MCOR board finds out the areas in which conscience objections arise and the services that are impacted. This helps the board possess an increasingly sharpened mapping of the area with regard to access by knowing how many medical providers are licensed to practice in a particular area as well as what services they will provide by knowing how many petitions for CO status have been granted. As the process begins to work, the members of the MCOR board will become more and more knowledgeable and can therefore better weigh rights of conscience against patient access considerations.
The medical CO has specific professional duties. First, a medical provider who has been granted CO status has a duty to register as an objector. I envision a database which contains the name of the provider who has been granted CO status, the service to which she objects, and a statement of the reasoned basis supporting the objection. Such a database would provide the basic information on the prevalence and nature of conscientious objection in the United States. There has been little empirical research on this question; a presumptive reason is the lack of such a database; additional reasons might include conceptual ambiguity regarding who qualifies as a CO, and unclarity about the nature of
From Objections to Exemptions 193 conscientious objection itself (Chavkin, Leitman, and Polin). The argument for a reason-giving requirement, the criteria for assessment presented and defended in Chapter 3, and the present call for a medical CO database are attempts to address this dearth in the literature. But the importance of creating a CO registry is greater than simply filling a lacuna in the debate. Focusing for the moment on abortion—seemingly the most contested procedure in medicine in the 21st century—we learn that 47,000 women die globally each year from unsafe abortions and an additional unknown number of women experience complications from incomplete or unsafe abortions and do not pursue care (Chavkin, Leitman, and Polin S45). We can plausibly assume that conscientious objection contributes to reducing access to abortion; it certainly does not increase access to pregnancy termination services. The lack of data just detailed does not allow us to study the degree to which conscience objections contribute to this staggering figure and therefore deprives us of at least some of the picture we need to be able to effectively address the problem. As Brooke Johnson notes: “Indeed, the extent to which conscientious objection to abortion directly results in pregnancy-related mortality and morbidity is unknown and merits further investigation” (Johnson et al. S61). The lack of transparency surrounding conscientious objection within medicine hides the depth of the problem and inhibits informed dialogue about how to properly address the effect of conscientious objection on women’s health and well-being. Requiring those granted exemptions to register would provide a centralized gathering place for the data needed to assess and remedy access problems caused by conscientious objections.
Further, the CO database would allow potential employers to become aware of the existence of conscientious objections by providers before hiring them. An expected retort to this point is that using such a database in this way may constitute employment discrimination on the basis of religion or other values. Yet we should keep in mind that such data connects to job-related duties and core competencies on the part of potential employees, and it is far from clear that religious values provide a wholesale excuse from completing core work tasks. The idea of using data in such a way is not a starry-eyed notion; a survey of consultants in the United Kingdom revealed that half want the authority to include performing abortions in job descriptions and more than one-third think that those who object should have to state the reasons supporting their objections (quoted in Chavkin S44). Finally, we find several countries around the world have already established such registries. These countries include Norway and Slovenia, although neither have reported any data in relation to the prevalence and nature of conscientious objection in their countries. Another such country is Italy, where 70% of obstetrician-gynecologists and 50% of anesthesiologists have registered with the Italian Ministry of Health as objectors to abortion (Minerva, 2015; Chavkin S44).
The notion of a medical CO registry is an idea whose time has come. In the US, these registries would be run by the states since this is where licensing boards reside, but should be overseen by the federal government as well to ensure they provide reasonable patient access and comport with the US Constitution.
A second obligation of medical COs is to inform patients of their status as a conscientious objector and to detail the services they refuse to offer. This information should be revealed to all patients. The CO database itself could possibly serve to inform patients of these facts. But for patients who are directly refused by a provider, it is likely that they have not encountered this information by accessing the database or else they likely would not have taken the time to ask this provider for a service they know he or she does not provide. Requiring providers to disclose this information to their patients, particularly to those who are directly refused, makes clear to the patient that the requested service is not being refused because it is thought to be medically dangerous for this patient, thereby preserving honesty and trust in the provider-patient relationship.
A third obligation for practitioners granted medical CO status is to provide accurate information to patients about the service in question even though the provider is morally opposed to providing that service. At first glance, it may seem too obvious to mention that a practitioner has a professional obligation to provide impartial information about the alternative methods of care a woman might receive even in light of the fact that the provider objects. Yet the small amount of empirical studies we possess on provider’s attitudes regarding their duties vis a vis conscientious objection suggest that this is a point worth stating explicitly. In a survey of 2000 US physicians, 14% did not think they had an ethical obligation to present every relevant option to their patients (Curlin et al. 595). The fact that approximately one-seventh of responding physicians rejected the existence of this basic professional obligation is noteworthy. If a doctor does not disclose clinically appropriate options to a patient due solely to moral opposition to those alternatives, this undermines the notion of informed consent. It also undermines patients’ abilities to seek out appropriate medical care and the health care system’s commitment to science when discussing clinical options with patients. A refusal to provide accurate clinical information is simply unacceptable. This obligation applies to all practitioners, as discussed earlier in relation to Pellegrino’s first moral imperative (Section 1.6), but here I am highlighting its applicability especially for providers who have been exempted from satisfying one of their professional obligations. Again, the idea is not far-fetched even from the perspective of policy. Some countries that have created registries have enacted precisely this stricture: “In Spain, women are entitled to receive information about their pregnancies (including prenatal testing results) from all providers, including those registered as objectors” (Chavkin S51).
Fourth, medical COs have an obligation to refer patients who they conscientiously refuse to a willing provider. This may be viewed as a fairly straightforward obligation possessed by physicians, but empirical studies suggest that a significant number of medical providers have a different perception. In the same survey just discussed, 29% of the physicians believed that they did not have a professional obligation to refer a patient to another provider if they conscientiously object to the medical service in question. These physicians list the following as their main reasons for this belief: (1) the contested service is against their ethics and they would be morally complicit if they referred the patient; (2) patients can find a willing doctor on their own; (3) it is not their job to know other doctors’ views on contested medical services. Reason (1) relating to moral complicity is not compelling, as I have discussed in Chapter 1, as long as it need only be an indirect referral. The Reasonability View holds that exempted medical professionals should provide the most thoroughgoing referral with which they feel comfortable, though they are required to at least provide an indirect referral to a patient who is refused.14
Reason (2) is simply an abdication of professional responsibility. Since practitioners have a prima facie duty to provide legally available, medically indicated, and safe clinical services to patients, if an exemption to satisfying this obligation is extended, the provider has the professional obligations of a medical CO that I outline in this section. If this practitioner is not comfortable discharging the minimal obligations that attend the exemption as part of the alternative service requirement, then he or she should not accept becoming a medical CO. Further, if it is found that a medical CO has consistently not satisfied these obligations, then the State should, after issuing several warnings to this physician, revoke CO status for this provider and indicate that the original set of professional obligations in place before the exemption was granted now apply to this practitioner. Reason (3) is a reasonable one—doctors should not have to expend lots of energy to keep tabs on the moral and religious beliefs of their colleagues. Yet this is no barrier to refusal on the system of medical CO status I propose. This is the case since such objecting physicians can easily identify other practitioners who provide the service by simply checking the medical CO database to rule out referring to any doctor listed on the registry.
Further, if a provider refuses and refers a patient in a hospital setting, that provider cannot acceptably refuse to provide supportive (after-) care to that patient. This sort of refusal of care has occurred in the US following pregnancy terminations; these medical providers have objecting to offering care after the procedure because, again, they feel this is against their ethics and makes them morally complicit (Stein, 2011). This is not acceptable for the reasons discussed earlier; in fact, providing such supportive after-care is further removed from the medical procedure than providing an indirect referral, and so requiring this of medical professionals is compelling. Refusing to perform an abortion and refusing to care for a woman who has (e.g.) developed a complication from same are two very different things. As a general matter, medical professionals should treat the patient’s ailment regardless of how the patient came to have that condition. In fact, some countries that have employed systems for conscientious objection have institutionalized just such a requirement; for example, doctors in Italy are legally required to assist before and after a pregnancy termination even if they object to abortion and opt out of the procedure (Chavkin S51).
This completes my discussion of the primary duties of practitioners who are granted medical CO status. The establishment of CO status in medicine by creating an MCOR board to review the claims of objecting medical professionals is a viable notion. It reinforces the idea of professional obligation by modifying the manner in which the associated duties are discharged if a practitioner is granted medical CO status. Not only is this viable, but as I will now argue, it is an independently attractive alternative as well.
