Alternative Views, Objections, and Replies

[T]o affirm that the freedom to follow conscience has no limits in the life of a society would deny that very plurality of principles which, as a matter of history, underlies protection of religious toleration.

—Justice Felix Frankfurter

The Incompatibility View v2.0

My main aim in this book is to provide a philosophical argument for the necessity of procuring and assessing rhe justifications of medical professionals who seek conscientious exemptions. In addition, I offer an account of a standard of assessment to be used as well as a social policy to utilize the reasonability standard I defend. I have diagnosed the failure of other established views regarding when to extend conscientious exemptions as stemming from their systemic failure to assess reasons. The other views in the literature are only plausible to the extent that they follow the contours of a reason-giving view. These other views either fail to institute a reason-giving requirement and a standard for assessing justifications and hence should be left behind, or they do so implicitly and should instead join forces with my reason-giving view to advance the debate. In this chapter, I will explore several further views on the proper scope of conscientious exemptions and will discuss their shortcomings, thereby suggesting that the Reasonability View is superior. I will also explain and respond to several final objections to my stance on conscientious objection in medicine.

The Incompatibility View is a popular competing position to my Reasonability View, so in this section I will examine different incarnations of it in detail. This view (or something much like it) has received further defense in recent work by Udo Schuklenk and Ricardo Smalling. In “Why Medical Professionals Have No Moral Claim to Conscientious Objection Accommodation in Liberal Democracies,” Schuklenk and Smalling emphasize that conscientious objectors in countries such as the US and Canada refuse to provide services that patients are entitled to receive from

Alternative Views, Objections, and Replies 221 members of the medical profession and that our society rightly expects such practitioners to provide. Their main reasons supporting this view are that medical practitioners have been granted monopoly privileges to offer these services, medical providers voluntarily joined the profession, the “objectionable” practices are within the scope of practice for such professionals, and the practices in question (such as abortion or dispensing hormonal contraception) are clearly legal. This leads Schuklenk and Smalling to conclude that since such providers are not objecting to participation in controversial actions such as torture within an illegitimate despotic regime or to executions by lethal injection, they have no ethical right to conscientious objection in a liberal democracy. As they state: “Medical professionals have no moral claim in liberal democratic societies to the accommodation of their individual conscientious objections” (Schuklenk and Smalling 240).

Schuklenk and Smalling conclude that medical providers have no ethical claim to an exemption, but this conclusion, taken on its own, would seem to make patients’ claim to medical services nearly absolute. Schuklenk and Smalling fail to plumb the depths of this implication of their position, nor do they elaborate any conditions regarding what a patient is entitled to besides for the fact that it is societally expected and legal. If we assume that the patients in question possess the ability to pay, this would imply that if a patient requests “body modifications” in the form of medical interventions to look like a Barbie doll (Griffiths) or to cut off his ears and to modify his nose to look like a reptile (O’Neill), they should expect this to be done at their request and in fact possess an absolute right to such services as long as they are legal. I find this be an implausible implication of this view. What I deny is that patients have an absolute right to all medical services, yet this seems to be an implication of Schuklenk and Smalling’s conclusion that is not logically supported. I have argued at length that the relevant claim is not an absolute duty but is instead best understood as a prima facie obligation to provide legally available, medically indicated, and safe services.

Schuklenk and Smalling seemingly want to highlight in their analysis an important difference between what can be expected by patients in (e.g.) totalitarian societies versus liberal democracies. The idea is that the acts to which medical professionals object in the latter are not criminal actions in service of the regime but voluntarily undertaken, standard medical procedures. This is an interesting approach. They make an important observation in this connection:

Liberal democracies rightly do not take a stance on the substance of their citizens’ moral or religious or other convictions, what is protected in liberal democracies’ constitutions is the citizen’s right to hold such beliefs and live by them—within reason.

(Schuklenk and Smalling 234)

This passage is correct in the main; US courts discussing the First Amendment and freedom of speech have expounded at length on the notion of maintaining content-neutral standards.1 This point is made by Schuklenk and Smalling to set up their argument that conscientious objectors may hold erroneous (or otherwise arbitrary) beliefs and hence should not be able to deprive patients of legally available medical services on the basis of their own personal “untestable” beliefs. Stemming from this observation, Schuklenk and Smalling conclude:

On this background, it is fortunate from conscientious objectors’ perspective that secular liberal democracies do not typically test whether the views conscientious objectors profess to subscribe to are defensible. What matters is that they are deeply held or, more to the point, that the conscientious objectors claim that they hold those convictions deeply.

(235-36)

While the general point about liberal democracies and content-neutral standards is accurate, Schuklenk and Smalling fail to grasp its significance for the conclusion they wish to defend. Liberal democracies do not judge the substance of an idea as right or wrong regarding its personal contemplation, but such democracies surely judge the reasonableness of acting in accord with the belief system in question. This does constitute a kind of judgment on the belief system itself—whether it is a reasonable one or not—and hence whether it represents something that can exit the mind and be properly acted upon in the world. This grants a kind of imprimatur on some belief systems and represents a failure to endorse others, such as discriminatory ones, that are unreasonable. This point is reflected, of course, in the core Rawlsian notion of public reason utilized in my reasonability analysis. Schuklenk and Smalling’s argument is that citizen-medical professionals practicing in liberal democracies should have less scope for conscientious objections since they voluntarily choose their actions instead of being pressed into service by a repressive regime, but this is exactly wrong. In liberal democracies, upholding the ideal of public reason means there is an attempt to justify its laws to all citizens. Medical professionals are citizens as well as health care providers. So, in accord with the notion of public reason, medical practitioners should expect more accommodation within liberal democracies, not less. At the most general level, Schuklenk and Smalling’s argument is a non sequitur. They argue that since there is no test for the defensibility of an objector’s belief system—they (236) state that “the substance of conscience-based objections that are protected is arbitrary”—then there should be no allowable conscientious objection. This conclusion does not follow. This is especially clear when one realizes that another response to the status quo exists: the failure to test the justification of beliefs could be addressed

Alternative Views, Objections, and Replies 223 by mandating a reason-giving requirement that evaluates objectors’ belief systems, for instance, based on a thin principle of Rawlsian public reasonability. Once the arbitrariness is reduced or removed, conscientious exemptions can become viable in liberal democracies, contrary to Schuk-lenk and Smalling’s argument.

Schuklenk and Smalling would likely respond by stating that establishing a system of assessment for scruples-based objectors is not possible:

Limiting conscientious objection accommodation to defensible claims seems impossible to us, unless we overcome the two problems mentioned: demonstrate the truth of the foundations of the conscientious objection and demonstrate evidence that objectors actually genuinely hold the views they claim to hold.

(236)

Their points are worth considering against the background I have provided and view I have defended in this book. I begin with the point that we cannot know whether objectors hold the views they profess. My Reasonability View possesses a distinctive response to this complaint. Given that my position aims to make voicing conscientious objection a public matter, my view focuses on public commitment to one’s values and not a foolproof method to access the inner sanctum of practitioners. I accordingly institute certain publicity requirements on conscientious objection, which include the following:

  • 1. An objector must be prepared to state and defend his or her position in a formal hearing to make clear its justification.
  • 2. If granted an accommodation, a petitioner for a conscientious exemption must be publicly registered as an objector.
  • 3. An objector who is granted conscientious objector status is required to stick to the objection.
  • 4. There are costs involved with being an objector on the registry.

I have offered extensive discussion of points 1 and 2 in the previous chapters. Point 3 is included to avoid the problem discovered in the so-called White Coat Underground in Poland where doctors claimed conscientious objection to abortion in their public practices so that they could perform the procedure in their private practices and make more money. In relation to point 4,1 have granted for the sake of argument there is a modicum of complicity when giving a referral (Chapter 1), hence my approach is to view provision of at least an indirect referral as a “cost” for the ability to be able to object to what would otherwise be one’s professional obligation. These elements of my commitment to the publicity requirement for conscientious objection are sufficient to take care of this objection, and I have further developed the publicity condition in my discussionof policy in the previous chapter. This approach addresses Schuklenk and Smalling’s broad-side argument about establishing genuineness: the answer is not about being able to read the minds of medical professionals but instead concerns looking for evidence of public commitment to one’s values as a conscientious objector. Providers who state and defend their position in a formal hearing, publicly register as an objector, stick to their objection by not performing the associated procedure in similar cases, and are willing to accept the requisite consequences of being a conscientious objector on the registry minimally evidence this public commitment. Obviously, the elements of the reasonability analysis must be applied to the objection in question to determine its reasonability. Yet in terms of addressing the sincerity problem itself, since the Reasonability View makes conscientious objection public, the genuineness of a belief is demonstrated through public commitment by the provider to her values in the ways I have described.

Schuklenk and Smalling’s other point is that it is impossible to create a system for testing the defensibility of conscientious beliefs unless we can “demonstrate the truth of the foundations of the conscientious objection.” This point is irrelevant to the Reasonability View. As I have argued, the focus is not on truth of the medical professional’s belief but instead concerns the reasonability of the belief and the objection in question. Schuklenk and Smalling’s claim here is off-base since it requires the wrong standard for objectors’ beliefs within a liberal democracy. We have learned that Schuklenk and Smalling’s arguments against creating a form of regulated conscientious objection are not convincing. In sum, they complain about a lack of regulatory machinery for conscientious objection in medicine and bemoan an extant policy that does not test objectors’ reasons, yet they offer no substantive suggestions for improvement and conclude that these considerations somehow support the conclusion that no conscientious objection should be allowed. This conclusion does not follow. The Reasonability View addresses these considerations by defending a plausible standard for assessing objectors’ petitions using a standard of public reasonability and by developing a viable public policy for conscientious objection that aims to detect spurious or otherwise inappropriate conscience objections.

Savulescu and Schuklenk join forces to defend the Incompatibility View. They focus on the examples of medically assisted dying, abortion, and contraception, and conclude that medical professionals have no right to conscientiously refuse to provide these services to patients. Their analysis arrives at four principles or considerations for determining the proper scope of conscientious objection regarding a medical practice:

If a service a doctor is requested to perform is a medical practice, is legal, consistent with distributive justice, requested by the patient or their appointed surrogate, and is plausibly in their interests, the doctor must ensure the patient has access to it.

(Savulescu and Schuklenk 167)

Savulescu and Schuklenk’s overall argument is that medical services such as abortion and contraception are legal (in many countries), are just and requested by female patients, and are in the interests of these women. Therefore, medical professionals must provide these services when these conditions are satisfied. The central argument is that doctors should engage in a discussion with the patient to help determine what is in that patient’s best interest, given her circumstances and desires. The paper advocates for an objective conception of what is in a patient’s interests and inveighs against a perspective based on ethical relativism (167-68). The medical practitioner should keep an open mind about whether a medical intervention is in the patient’s best interest, and should not be able to exercise veto power over an autonomous adult patient’s choice simply on the basis of his or her own religious or moral values. To deny a patient such a medical service based on one’s own values is not acceptable on their view:

For religious GPs, obstetricians and pharmacists to refuse to provide the oral contraceptive pill is simply unprofessional. There is no requirement for a healthcare system to accommodate unprofessional behavior.

(Savulescu and Schuklenk 163)

Their conclusion is in line with the incompatibility thesis:

Individual values ought not to govern delivery of health care at the bedside. Doctors can campaign for policy or legal reform . . . [b]ut they have no claim to special moral status that would permit them to deny patients medical care that these patients are entitled to.

(Savulescu and Schuklenk 170)

I will argue that Savulescu and Schuklenk’s argument fares no better than previous defenses of the Incompatibility View. The first concern with their defense of an Incompatibility View is that if this view was put into practice, it would lead to doctors engaging in what James Childress calls evasive non-compliance (Childress) or what I refer to as “hiding.” Evasive non-compliance consists of a provider making an excuse with no expressed conscientious objection and then not performing the requested medical service. “Hiding” (Chapter 5) consists simply of cloaking one’s refusal in terms of an expressed conscience objection, yet that objection is spurious since it does not accurately express the practitioner’s moral beliefs. The refusal instead may be (e.g.) a matter of expediency or a way to avoid having to broach a politically contested issue. Whether the provider chooses not to express his or her values or instead elects to hide behind a spurious conscience objection, this pushes the treatment of conscientious objection underground and is a troublesome result.

I have argued that one good reason to grant exemptions for reasonable conscience objections is that this acknowledges moral disagreement in medicine; this represents a concrete step which acknowledges that within the inherently moral enterprise of medicine we must make room for toleration of differing reasonable viewpoints. It is unclear why a medical provider would choose to express a moral reservation with a patient about a requested procedure if he or she knows that there is no leg to stand on with regard to a refusal. If the provider believes that participating in the requested action will undermine a genuinely held, core moral belief, then it is more likely that the practitioner will evade or hide if Savulescu and Schuklenk’s Incompatibility View was to become the norm in medical practice. By contrast, the Reasonability View is transparent. Evasive non-compliance and hiding represent unprofessional behavior—on this one point I think the three of us agree. Yet Savulescu and Schuklenk consider a provider who invokes his or her individual values to avoid participation in abortion, dispensing contraception or medically assisted death to be acting unprofessionally in any case, which implies that they do not regard the acknowledgment of moral diversity in medicine as valuable but instead solely as an attack on patient access. Instead of providing an incentive to engage in evasive non-compliance and hiding, we should encourage expressions of moral diversity in a professional environment with the possibility of reasonable conscientious exemptions. Due to its absolutist stricture on accommodation, the Incompatibility View will in practice relegate the treatment and discussion of morally disputed medical interventions to a clandestine space, while the Reasonability View embraces the enduring truth that sunlight is the best antiseptic.

The second main problem is that Savulescu and Schuklenk’s position cannot accommodate conscientious commitment. I discussed this as an objection to Savulescu’s defense of the Incompatibility View earlier (Chapter 2), but the point cuts more deeply against this recent version of the position. Consider again the case of Savita Halappanavar, a woman 17 weeks pregnant who died in 2012 after being refused a uterine evacuation by an Irish hospital while she was miscarrying since it was illegal to perform an abortion under Irish law at the time. What would Savulescu and Schuklenk’s analysis say about this case? Could they endorse the choice of a doctor who wished to perform the uterine evacuation to save Savita’s life, even though this was not clearly allowable under Irish law? To discover the answer to this question, consider Savulescu and Schuklenk’s discussion of laws (opposed by both authors) in the UK and Australia that require the destruction of embryos produced during assisted

Alternative Views, Objections, and Replies 227 reproduction after a certain number of years has elapsed. In this passage, the essence of their position becomes clear:

Here we arrive at the role of conscience and the place of values in medicine. The law is such that couples can or must destroy their excess embryos. We believe these laws should change. This should motivate us to campaign to change them. In the meantime, doctors should engage patients in argument and try to convince them rationally, using evidence, to donate their excess embryos. But in the end, if couples wish to destroy their excess embryos, IVF specialists should comply, regardless of their conscientious objections to the practice.

(Savulescu and Schuklenk, 166)

Their position is that a medical provider can campaign for change but cannot act individually and violate the law, even if the law is unethical. On Savulescu and Schuklenk’s view, the medical professional must comply with the law. The IVF destruction case is more ethically controversial than the Savita case, but it seems relatively clear that Savulescu and Schuklenk’s position would imply that a medical professional could not violate Irish law in 2012 to perform the uterine evacuation, though he or she could publicly campaign for legal reform.

Yet as argued earlier, there is no time to change the law if one wants to save Savita’s life (Chapter 2). Savita repeatedly requested the procedure, it is clearly in her best interest since she wants to continue to live, and it is plausibly consistent with justice—no injustice would be done to the fetus since it was not capable of survival at 17 weeks gestational age. These points are of great salience to Savulescu and Schuklenk’s analysis. Yet since the request is not legal, the patient is not entitled to this service, and hence the doctor is not required to provide it. To act against the law and provide the uterine evacuation would be to deploy conscience at an individual level. Yet as we have seen, a hallmark of the Incompatibility View is one can attempt to change a policy or law through political means or some such, but one cannot appeal to conscience at the bedside. It is hard to believe that these Incompatibilists want their view to not endorse providing life-saving care such as the uterine evacuation in the Savita case, but I do not see how these thinkers can avoid this result. This is another ethically troubling implication of Savulescu and Schuklenk’s analysis.

By contrast, the Reasonability View has the means to support conscientious provision of the uterine evacuation to save Savita’s life. I have argued (Chapters 2, 3) that if the logic of conscientious objection allows that a provider can rightly refuse to perform some actions based on a reasonable objection to preserve his or her integrity, then she or he must also be able to engage in some acts of conscientious commitment contrary to judicial law or institutional policy, since not being able to perform actions can also undermine one’s integrity in the same sort of way.

This stance may make some thinkers nervous, leading them to scout for the nearest slippery slope. The concern is unjustified. In my view, the Savita case is relatively straightforward since protecting human life is more important than upholding the law, particularly when the choice is between having both the woman and the fetus die, or just one. From an ethical point of view, one guiding moral principle on the Reasonability View could be that medical providers can acceptably engage in an act of conscientious commitment that violates the law if this is needed to protect a patient’s life in accord with that patient’s wishes.2 I offer this principle as a plausible moral claim, but we even find a doctrine within the law (in the common law of the US and England, for example) which allows that in cases of necessity, protecting life can exempt one from the routine legal punishment, although one may still be liable for some lesser punishment.3 The Savita case is among the clearest cases of justifiable conscientious commitment, yet Savulescu and Schuklenk cannot endorse the correct conclusion. The Savita case pits the legality condition of their analysis of conscientious objection against the best interest condition—if a medical intervention is essential to a patient’s well-being (and survival!) does this justify violating the law? How do these two conditions work together on Savulescu and Schuklenk’s view? Examining several other cases will expose a deeper problem with their view related to the tension between what is best for the patient versus a medical provider’s fidelity to law.

We will begin with a case that Savulescu and Schuklenk discuss directly: medically assisted dying. After explaining several reasons why medical aid in dying is in a patient’s interest, they conclude:

If patients meet the standards defined in the relevant legislation, they are entitled to access medical aid in dying, regardless of what a particular doctor thinks about their “best interest.”

(Savulescu and Schuklenk 170)

Here Savulescu and Schuklenk discuss a possible case of conscientious refusal and argue that the doctor must medically assist in the patient in dying, even if the medical professional does not believe this is in the best interest of this particular patient. There is an active debate regarding whether medically assisted death is in fact in a patient’s interest; for example, there is evidence that patients who complete advance directives in fact “deal down” and modify their preferences towards accepting more life-extending interventions when actually confronted with death (Ryan). Here again we see a conflict between what is in the best interest of the patient and what is legal: assuming that laws in the relevant state allow medically assisted death, these thinkers believe the law dictates what the medical professional should do. Savulescu and Schuklenk provide no discussion of what constitutes a medical intervention that is

Alternative Views, Objections, and Replies 229 in the patient’s interests, even though that is necessary to ground their analysis. Determining what is in a patient’s best interest is a vexed question, the answer to which is determined by this dynamic duo in an opaque fashion. They accordingly downgrade the best interest discussion and instead make fidelity to law the dominant theme. The tension in their analysis between what is legal and what is in patients’ best interest is not recognized or addressed by Savulescu and Schuklenk.

Let’s also consider abortion and TRAP (Targeted Regulation of Abortion Provider) laws in the United States. There are a number of states in the US that legally require doctors to provide patients with standardized information before performing an abortion, some of which is misleading (aimed to dissuade women from receiving a termination) and/or scientifically inaccurate. For example, in Mississippi, abortion providers must tell their patients that abortion increases the chances of breast cancer (Richardson).41 will focus on this specific piece of required information solely since it has been thoroughly discussed (and debunked) in Chapter 1. Let’s imagine a provider who thinks it is morally wrong to knowingly provide patients with scientifically inaccurate information prior to a medical procedure. Can he or she conscientiously object to doing so, in violation of the law stating that they must provide this mandated information? On Savulescu and Schuklenk’s view, it is plausible to conclude that the answer is no—the doctor must provide the mistaken data, even though a woman may be dissuaded from having a termination based on this inaccurate information. On their position, a medical professional can campaign for changing the law, yet while it is in effect a doctor could not individually choose to engage in conscientious commitment and forgo relating the scientifically inaccurate claim since that would constitute deploying conscience in an individual case and conscience at the bedside is prohibited. This is clearly not in the best interests of a female patient considering a pregnancy termination. The case is controversial, of course, but it suggests a crucial weakness of this version of the Incompatibility View: it supports violating the requirement of informed consent by patients.

Consideration of these cases reveals novel difficulties with Savulescu and Schuklenk’s analysis of conscientious objection in medicine. The Savita case represents an instance where the medical intervention is in a patient’s interest but a provider cannot perform it due to its illegality. The TRAP law example represents a case where providing the misleading information is not in a patient’s interest, yet the doctor must do so in accord with the law and cannot conscientiously refrain from such. We learn that in relation to conscientious commitment and conscientious refusal, Savulescu and Schuklenk’s best interest standard lies behind a cloud. They offer no substance to apply their analysis practically or to reconcile their best interest standard with the legality requirement. This view falters when viewed alongside a principled position such as the

Reasonability View. They claim that the patient’s best interest is a central concern, but their view would advocate not violating the law by an individual appeal to conscience to save a pregnant woman’s life, even when the fetus will not live. This version of the Incompatibility View is simply inadequate as a philosophical analysis of the boundaries of conscientious objection.

There is one final twist. I have argued that Savulescu and Schuklenk’s Incompatibility View has unacceptable implications, and even if it can escape these arguments, its analysis is so underdeveloped that does not represent an independently plausible approach to examine the ethical boundaries of conscientious objection in medicine. It is natural enough to think that on this Incompatibility View, the answer is always “No” to any question of whether a medical professional can act from conscience—but is an exercise of individual conscience ever acceptable on Savulescu and Schuklenk’s view?

Savulescu and Schuklenk do not in fact make the universal claim that there should be no conscientious objection since they appear to support conscientious refusal in the case of the US Navy nurse (discussed in Chapter 3) about whom they write. “Here is one case of a valid conscientious objection that deserves our respect” (2017, 167). Recall this nurse refused to force-feed patient detainees on a hunger strike, an action seen as tantamount to torture. This is consistent with their view because torture is not legal, not desired by the patient, and is not in the patient’s best interests.5 If this is correct, then it is too strict to say that on their version of the Incompatibility View, practitioners can never act upon conscience; practitioners could possibly earn a conscientious exemption. Yet now I am even more puzzled about the Incompatibility View. If Savulescu and Schuklenk’s analysis can support some conscientious exemptions, then it is no longer is an “Incompatibility View.” This is the case because conscientious objection is only accidentally incompatible with being a medical professional. In some cases, it is compatible. This is no longer a distinctive view which attempts to mark off a theoretical divide between a medical professional and lodging a conscientious objection. Second, and more importantly, if their view allows a conscientious exemption in cases where the medical service in question is not legal, consistent with distributive justice, requested, and in the interests of the patient, then their view is simply a reason-giving view. That is, it only allows conscientious objection when this is reasonable, i.e. when it is not the case the medical practice the patient desires is legal, consistent with (distributive) justice, requested, and in the interests of the patient. Determining how these factors work together to determine that one is not entitled to the medical service, therefore making the provider eligible for an exemption, is a puzzle I will leave Savulescu and Schuklenk to ponder. Yet if this is a reasonability view, it is not a very promising one since, as I have argued, there are tensions between some of the conditions (such as the legality

Alternative Views, Objections, and Replies 231 versus the best interest conditions) that suggest it gets the wrong answers and is unworkable.

If Incompatibilists support some conscientious exemptions and their view is a reasonability view, then the challenges of normative justification are theirs to face. They now have to normatively justify in each case if the circumstances dictate that the patient is entitled to the medical service—Is provision of this service in accord with justice? Is this medical practice in the patient’s interest? How do these weigh against the legality of the practice and the fact that it was requested by the patient? Do these considerations when looked at together justify extending an exemption in this instance? Incompatibilists such as Savulescu and Schuklenk complain about outrageous cases of conscientious objection (which I do as well) and then use these discussions to argue (generally) against conscientious objections. It has escaped notice that in shifting such discussions to instead focus on aspects of the case as opposed to facets of the provider’s belief, Incompatibilists have not done the foundational work necessary to develop a philosophical analysis that can be systematically applied to cases of conscientious objection. As a reason-giving view, it is more a statement of a view as opposed to an analysis proper. Perhaps most surprisingly, this view now looks very different from what it appeared to be at the outset. It is no longer some special “Incompatibility View” that stems from deep unquestionable features of being a medical professional but instead looks to be a species of my Reasonability View. Thinkers such as Savulescu and Schuklenk with an affinity for this position should drop the unhelpful discussions about a supposed “incompatibility,” explicitly subscribe to a reason-giving view, and get down to the real business of arguing for the correct standard to identify and assess what constitutes a compelling claim of conscience in medicine.

The final recent iteration of an Incompatibility View I will discuss is offered by Ronit Stahl and Ezekiel Emanuel (2017). In “Physicians, Not Conscripts—Conscientious Objection in Health Care,” Stahl and Emanuel argue that conscientious objection in medicine should be greatly limited. Their position is captured in the following passage:

We . . . argue that, in most cases, professional associations should resist sanctioning conscientious objection as an acceptable practice. Unlike conscripted soldiers, health care professionals should resist sanctioning conscientious objection as an acceptable practice. Unlike conscripted soldiers, health care professionals voluntarily choose their roles and thus become obligated to provide, perform, and refer patients for interventions according to the standards of the profession.

(Stahl and Emanuel 1380)

Stahl and Emanuel emphasize throughout their paper that the voluntary nature of joining the medical profession implies, for the most part, thatproviders waive a substantive right to conscientiously object to medical practices which violate their core, genuinely held ethical beliefs. They first lay out some of the history of conscientious objection to military service as well as the position statements of professional societies such as the AMA, and then begin to offer the main argument for their view. An important move in their argument is the claim that the medical profession spells out the boundaries of physicians’ primary interest in promoting patient well-being; this is not the role of individual practitioners (1382). Their position, then, has a classic earmark of an Incompatibility View: some larger body such as society or the profession, not the belief system of an individual moral agent, delimits what is acceptable conscientious objection to a medical procedure. Stahl and Emanuel cite the AMA Code of Ethics as well as Rawls’ idea of reflective equilibrium when making this move, stating that

Professionals debate issues until there is consensus but not necessarily unanimity.... As with all humans and human institutions, including the Supreme Court, professional societies can make mistakes.... But the profession also uses reflective equilibrium to self-correct. This dynamic process establishes professional obligation for health care providers regardless of their personal beliefs.

(1382)

For Stahl and Emanuel, the “profession” seems to be equivalent to (or somehow reducible to) professional societies such as the AMA, the American Pharmacists Association, or the American Nurses Association versus the membership at large, but nonetheless these Codes of Ethics and position statements bind each member to give primacy to patient well-being. My defense of the Reasonability View relies on the notion that medical practitioners ought to assign primacy to patient well-being (Chapter 1), and I have no quarrel with the notion that the profession self-corrects by working back and forth between theory and practice to revise what is considered part of the fiduciary duty to promote patient’s interests. As I will argue, however, it is not clear why a version of the Incompatibility View is established by Stahl and Emanuel’s argument.

The essence of their argument is contained in the following passage:

No one is forced to be a physician, nurse, pharmacist, or other health care professional or to choose a subspecialty within their larger field. It is a voluntary, individual choice. By entering a health care profession, the person assumed a professional obligation to place the well-being and rights of patients at the center of professional practice. This obligation is not unlimited, but exemptions are reserved for cases in which there are substantial risks of permanent injury or death. In a professional context, personal religious convictions are secondary.

(1382)

Stahl and Emanuel’s main argument, then, is that voluntariness is a sufficient reason to establish that providers cannot, for the most part, engage in conscientious objection to particular medical practices. In this passage, they do not suggest that moral beliefs can never serve as a consideration that could defeat a provider’s professional obligation to give primacy to patients’ interests, but only imminent risks to health and life can do so. They discuss the comparison with military conscientious objection, stress the voluntariness of medical practitioners versus conscripted soldiers, and conclude that there should be no room for conscience objections in medicine. But the claim that conscientious objection is only justified if the activity in question is conscripted (non-voluntary) is mistaken. In fact, this notion is empirically false in the US if we look to the military. As Stahl and Emanuel certainly know, conscientious objector status still exists in the US armed services in the 21st century even though the draft was ended in the early 1970s, but what they don’t realize is that over 50% of our volunteer military who have applied for CO status during the recent US armed conflicts in Afghanistan and Iraq have had their petitions granted (Minear 142). A US Government Accountability Office (GAO) Report looking at the period from 2002-2006 found that 53% of applicants for CO status were approved, 44% were denied, and 3% were pending, withdrawn, or closed (Minear).6 Clearly, from an empirical standpoint voluntary service is compatible with real rights to engage in conscientious objection, contrary to Stahl and Emanuel’s assertions. I realize, of course, that the military and the medical contexts are not precisely analogous (Chapter 5). However, since little empirical information is unfortunately available on conscientious objection in medicine given the opaque nature of this phenomenon at present, we should utilize whatever empirical data and resources we can acquire to inform our thinking.

In the military context, the very idea that conscientious objection cannot make sense in all-volunteer army is a seductive idea. It is this notion that Stahl and Emanuel grasp at, but as Larry Minear (142) points out, the idea is not sound. US recruits in the military are asked on their entrance applications whether they are morally opposed to war. This preemptive approach can prevent some conscientious objections. Yet military personnel may undergo a religious conversion to a faith that considers war to be wrong, or a solider might have personal life experiences (perhaps, for example, as a result of serving in the theater of battle) that lead her or him to be ethically opposed to war. These arguments can apply, mutatis mutandis, to the medical profession. Medical professionals may have a religious conversion. The experience of undergoing the training to become a physician in general,7 or one’s personal experiences tending to patients, may change one’s moral attitudes about life and death and as a result modify one’s ethical beliefs about particular medical practices. Stahl and Emanuel’s treatment overlooks these basic points about how humans can change over time; in fact, it might be more surprising to find a person who remains unchanged between her first day as a medical student and her twentieth year in practice. Similarly, in a voluntaristic system such as the US medical profession, freely entered service can properly lead to conscientious objection. Stahl and Emanuel’s argument is a non sequitur: the fact that one voluntarily enters the medical profession does not establish the conclusion that a practitioner has no privilege to engage in conscientious objection. While I believe that medical providers must assign primacy to promoting patients’ interests, I have argued at length that the primacy tenet is compatible with tolerating reasonable conscientious objections within medicine.

Further, the position defended by Stahl and Emanuel is indeterminate. The quote with which I began the discussion of their position reveals the unclarity: “Unlike conscripted soldiers, health care professionals voluntarily choose their roles and thus become obligated to provide, perform, and refer patients for interventions according to the standards of the profession” (1380). If practitioners are obligated to provide or perform medical interventions to which they are morally opposed, then Stahl and Emanuel’s position is a species of an Incompatibility View. If practitioners are obligated only to refer patients with regard to “objectionable” medical interventions, then Stahl and Emanuel’s position becomes a species of a Referral View. If all three become duties, then this is an Incompatibility View, yet we should try to nail down the precise substance of their view. Interestingly, there is some room for conscientious objection on their position:

There is, however, a specific role for conscientious objection. It provides limited recourse in professionally contested interventions—that is, interventions about which the health care community is debating whether participation is appropriate or not. . . . Health care professionals who conscientiously object to professionally contested interventions may avoid participating in them directly, but, as with military conscientious objectors, who are required to perform alternative service, they cannot completely absent themselves from providing these services. Conscientious objection still requires conveying accurate information and providing timely referrals to ensure patients receive care.

(1383)

Stahl and Emanuel seem to be straddling the fence between an Incompatibility View and a Referral View. Stahl and Emanuel draw a distinction

Alternative Views, Objections, and Replies 235 between professionally contested interventions—physician-assisted suicide (PAS) is their example—and services that are “politically and culturally contested” but not medically controversial—their example is abortion—to suggest that there should be more latitude for providers to conscientiously object to the professionally contested services versus those that are merely politically and culturally contested. A fair reading of their core position is that it essentially comprises a Referral View with regard to the professionally contested services, and an Incompatibility View with regard to the politically and culturally contested services. Call this reading of Stahl and Emanuel’s incompatibilist position the Hybrid View.

The problem I see with the Hybrid View is that Stahl and Emanuel offer no discussion of this central distinction and it seems remarkably difficult to reach consensus regarding the class membership of particular medical interventions. Is pre-conceptual sex selection a professionally contested service, or is it merely politically and culturally contested? Is the Ashley X treatment professionally contested, merely politically and culturally contested, or both? The Ashley X treatment refers to a case in which the parents of a severely disabled child decided to have her breast buds removed, a hysterectomy performed on her, and high-dose estrogen given to retard her maturation and physical growth. Ashley was born brain-damaged with cerebral palsy, has a mental capacity said to be that of a six-month-old, does not walk or talk, is fed through a tube, and wears diapers. She is dependent on her parents or doctors for her every need, and in 2004 Ashley’s parents made the controversial decision for her doctors to perform this growth attenuation therapy to care for their bed-bound child more easily (Burkholder). It is unclear how Stahl and Emanuel would classify pre-conceptual sex selection and the Ashley X treatment, and this is a significant problem for their view.

There are meaningful questions here, since their answer will determine the actions an objecting physician must take to discharge his or her professional obligation to patients. On its merits, I think the Ashley X treatment could be considered both professionally contested as well as politically and culturally contested. Regarding the latter, disability rights theorists would consider this to be an abomination, even if the treatment met its goal of limiting the child’s weight and thereby making basic daily care easier. If this is a professionally contested treatment as well, would this mean that a medical professional could acceptably avoid direct participation in this intervention? Yet the Ashley X treatment has its defenders,8 so if it is merely a politically and culturally contested service, a practitioner must seemingly participate (via referral at least) in the Ashley X treatment. The same goes for pre-conceptual sex selection. What if there is disagreement about whether the service is professionally contested? What if there is no consensus at all? The defenders of the Hybrid View offer no clues to answer these questions and hence to make this central distinction and the view behind it work. Further, Stahland Emanuel offer no arguments to defend their classification that PAS falls in the former class within which conscientious objection is acceptable, while abortion falls in the latter class within which no conscientious objection is allowed. The Hybrid View is simply not cohesive; it is not known how Stahl and Emanuel have reached their substantive conclusions on the classification of particular medical interventions, nor how one might extrapolate and use their distinction to classify other medical services besides the two they mention.

The Reasonability View’s analysis can reach the same conclusions with regard to conscientious objection on the two issues Stahl and Emanuel choose to discuss—except my position uses a reasoned basis. It is easy to imagine a provider possessing core, genuinely held moral beliefs that lead him to oppose PAS and that do not violate the empirical consonance condition and so are intrinsically reasonable. If a provider’s moral concerns about PAS stem from research suggesting that patients are not good at judging their own interests when making end-of-life decisions, this reservation is at the very least cast in terms of public reason. It is further imaginable that all of the conditions are satisfied regarding the extrinsic reasonability of a conscience objection to PAS, given that implementing the protocol for such is not discriminatory or an emergency. Hence, conscientious objection regarding PAS can be acceptable on the Reasonability View (Chapter 3). Regarding abortion, as discussed in detail in Chapter 3, one can pass the test for intrinsic reasonability. In the United States, however, I have argued that one cannot satisfy the conditions for extrinsic reasonability. Hence, on the Reasonability View there can be no conscientious objection to abortion in the US (although this may be different in other countries). The reasoning offered by the Reasonability View is more satisfying; even if my analysis is contentious, it is more transparent than an account that relies on a central distinction founded upon assertion.

From a philosophical perspective, Stahl and Emanuel have merely hidden the ball—their fundamental reasoning is not made clear. If there is significant disagreement about which medical services should be classified as professionally contested versus merely politically and culturally contested, this drains their view of practical applicability. Defenders of a substantive position on conscientious objection must roll up their sleeves and offer a full-throated defense of the ethical basis of their view and any associated distinctions as well as make it practically applicable to real cases. The Reasonability View embraces these challenges and is therefore preferable to the Hybrid View.

 
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