No conscientious objection without normative justification: Against conscientious objection in medicine

Most proponents of conscientious objection accommodation in medicine acknowledge that not all conscientious beliefs can justify refusing service to a patient. Accordingly, they admit that constraints must be placed on the practice of conscientious objection. I argue that one such constraint must be an assessment of the reasonability of the conscientious claim in question, and that this requires normative justification of the claim. Some advocates of conscientious object protest that, since conscientious claims are a manifestation of personal beliefs, they cannot be subject to this kind of public justification. In order to preserve an element of constraint without requiring normative justification of conscientious beliefs, they shift the justificatory burden from the belief motivating the conscientious claim to the condition of the patient being refused service. This generally involves a claim along the lines that conscientious refusals should be permitted to the extent that they do not cause unwarranted harm to the patient. I argue that explaining what would constitute warranted harm requires an explanation of what it is about the conscientious claim that makes the harm warranted. ‘Warranted’ is a normative operator, and providing this explanation is the same as providing normative justification for the conscientious claim. This shows that resorting to facts about the patient’s condition does not avoid the problem of providing normative justification, and that the onus remains on advocates of conscientious objection to provide normative justification for the practice in the context of medical care.     

Conscientious Objection to Vaccination

Vaccine refusal occurs for a variety of reasons. In this article we examine vaccine refusals that are made on conscientious grounds; that is, for religious, moral, or philosophical reasons. We focus on two questions: first, whether people should be entitled to conscientiously object to vaccination against contagious diseases (either for themselves or for their children); second, if so, to what constraints or requirements should conscientious objection (CO) to vaccination be subject. To address these questions, we consider an analogy between CO to vaccination and CO to military service. We argue that conscientious objectors to vaccination should make an appropriate contribution to society in lieu of being vaccinated. The contribution to be made will depend on the severity of the relevant disease(s), its morbidity, and also the likelihood that vaccine refusal will lead to harm. In particular, the contribution required will depend on whether the rate of CO in a given population threatens herd immunity to the disease in question: for severe or highly contagious diseases, if the population rate of CO becomes high enough to threaten herd immunity, the requirements for CO could become so onerous that CO, though in principle permissible, would be de facto impermissible.     

A Defence of Conscientious Objection in Medicine: A Reply to Schuklenk and Savulescu

In a recent (2015) Bioethics editorial, Udo Schuklenk argues against allowing Canadian doctors to conscientiously object to any new euthanasia procedures approved by Parliament. In this he follows Julian Savulescu's 2006 BMJ paper which argued for the removal of the conscientious objection clause in the 1967 UK Abortion Act. Both authors advance powerful arguments based on the need for uniformity of service and on analogies with reprehensible kinds of personal exemption. In this article I want to defend the practice of conscientious objection in publicly‐funded healthcare systems (such as those of Canada and the UK), at least in the area of abortion and end‐of‐life care, without entering either of the substantive moral debates about the permissibility of either. My main claim is that Schuklenk and Savulescu have misunderstood the special nature of medicine, and have misunderstood the motivations of the conscientious objectors. However, I acknowledge Schuklenk's point about differential access to lawful services in remote rural areas, and I argue that the health service should expend more to protect conscientious objection while ensuring universal access.     

A defense of conscientious objection: Why health is integral to the permissibility of medical refusals

Schuklenk, Smalling, and Savulescu put forth four conditions that delineate when conscientious objection is impermissible. Roughly, they argue for the following claim: if some practice is legal, standard, expected of a profession, and in the patient's interest, then medical professionals cannot refuse to perform the practice. In this essay, I argue that these conditions are not jointly sufficient to deny medical professionals the ability to refuse to perform procedures that detract from a patient's health. They are insufficient to bar medical refusals to perform certain practices because, even when these conditions are met, non-health conducive practices would not be open to refusal by the physician. I provide an example of a non-health conducive practice female genital mutilation, which meets all of the proposed conditions but, intuitively, should be open to medical refusals. As a result, I conclude that the proposed conditions are insufficient to determine when conscientious objection is impermissible. I then offer an amendment to their position by suggesting that a practice, in addition to the other four conditions, must also be health conducive in order to remove the medical professional's ability to refuse to perform the practice.     

Conscientious objection,professional duty and compromise: A response to Savulescu and Schuklenk

In a recent article in this journal, Savulescu and Schuklenk defend and extend their earlier arguments against a right to medical conscientious objection in response to criticisms raised by Cowley. I argue that while it would be preferable to be less accommodating of medical conscientious than many countries currently are, Savulescu and Schuklenk's argument that conscientious objection is ‘simply unprofessional’ is mistaken. The professional duties of doctors should be defined in relation to the interests of patients and society, and for reasons set out in this article, these may support limited accommodation of conscientious objection on condition that it does not impede access to services. Moreover, the fact that conscientious objection appears to involve unjustifiable compromise from the objector's point of view is not a reason for society not to offer that compromise. Arguing for robust enforcement of the no‐impediment condition, rather than opposing conscientious objection in principle, may be a more effective way of addressing the harms resulting from an over‐permissive conscientious objection policy.     

Conscientious Refusals and Reason‐Giving

Some philosophers have argued for what I call the reason‐giving requirement for conscientious refusal in reproductive healthcare. According to this requirement, healthcare practitioners who conscientiously object to administering standard forms of treatment must have arguments to back up their conscience, arguments that are purely public in character. I argue that such a requirement, though attractive in some ways, faces an overlooked epistemic problem: it is either too easy or too difficult to satisfy in standard cases. I close by briefly considering whether a version of the reason‐giving requirement can be salvaged despite this important difficulty.     

No conscientious objection without normative justification: A reply

Benjamin Zolf, in his recent paper ‘No conscientious objection without normative justification: Against conscientious objection in medicine’, attempts to establish that in order to rule out arbitrary conscientious objections, a reasonability constraint is necessary. This, he contends, requires normative justification, and the subjective beliefs that ground conscientious objections cannot easily be judged by normative criteria. Zolf shows that the alternative of using extrinsic criteria, such as requiring that unjustified harm must not be caused, are likewise grounded on normative criteria. He concludes that conscientious objection is therefore untenable. Here, I present an alternative account, based on the value we are willing to place on conscientious objection as an expression of freedom of conscience and religion. Using an extrinsic criterion such as harm, we can make a judgement of what degree of harm should be tolerated as the cost of permitting conscientious objection. A normative criterion for judging individual claims is therefore not required.     

Institutional refusal to offer assisted dying: A response to Shadd and Shadd

Ever since medical assistance in dying (MAID) became legal in Canada in 2016, controversy has enveloped the refusal by many faith‐based institutions to allow this service on their premises. In a recent article in this journal, Philip and Joshua Shadd have proposed ‘changing the conversation’ on this issue, reframing it as an exercise not of conscience but of an institutional right of self‐governance. This reframing, they claim, will serve to show how health‐care institutions may be justified in refusing to provide MAID on moral or religious grounds. I argue that it will not make it easier to justify institutional refusal, and is likely to make it harder.     

Wrongness,Responsibility, and Conscientious Refusals in Health Care

In this article, I address what kinds of claims are of the right kind to ground conscientious refusals. Specifically, I investigate what conceptions of moral responsibility and moral wrongness can be permissibly presumed by conscientious objectors. I argue that we must permit HCPs to come to their own subjective conclusions about what they take to be morally wrong and what they take themselves to be morally responsible for. However, these subjective assessments of wrongness and responsibility must be constrained in several important ways: they cannot involve empirical falsehoods, objectionably discriminatory attitudes, or unreasonable normative beliefs. I argue that the sources of these constraints are the basic epistemic, relational, and normative competencies needed to function as a minimally decent health‐care professional. Finally, I consider practical implications for my framework, and argue that it shows us that the objection raised by the plaintiffs in Zubik v. Burwell is of the wrong sort.     

Public reason in justifications of conscientious objection in health care

Current mainstream approaches to conscientious objection either uphold the standards of public health care by preventing objections or protect the consciences of health‐care professionals by accommodating objections. Public justification approaches are a compromise position that accommodate conscientious objections only when objectors can publicly justify the grounds of their objections. Public justification approaches require objectors and assessors to speak a common normative language and to this end it has been suggested that objectors should be required to cast their objection in terms of public reason. We provide critical support for such a public reason condition and argue that it would be neither too demanding nor too permissive. We also respond to objections that it unfairly favours secular over religious objectors and that public reasons cannot be held with the kind of sincerity thought to characterize conscientious objections.     

The limits of conscientious objection to abortion in the developing world

The South African Choice on Termination of Pregnancy Act 92 of 1996 gives women the right to voluntary abortion on request. The reality factor, however, is that five years later there are still more 'technically illegal' abortions than legal ones. Amongst other factors, one of the main obstacles to access to this constitutionally enshrined human right is the right to conscientious objection/refusal. Although the right to conscientious objection is also a basic human right, the case of refusal to provide abortion services on conscientious objection grounds should not be seen as absolute and inalienable, at least in the developing world. In the developed world, where referral to another service provider is for the most part accessible, a conscientious objector to abortion does not really put the abortion seeker's life at risk. The same cannot be said in developing countries even when abortion is decriminalised. This is because referral procedures are fraught with major obstacles. Therefore, it is argued that the right to conscientious objection to abortion should be limited by the circumstances in which the request for abortion arises.     

Conscientious objection and compromising the patient: Response to Hughes

Hughes offers a consequentialist response to our rejection of accommodation of conscientious objection in medicine. We argue here that his compromise proposition has been tried in many jurisdictions and has failed to deliver unimpeded access to care for eligible patients. The compromise position, entailing an accommodation of conscientious objection provided there is unimpeded access, fails to grasp that the objectors are both determined not to provide services they object to as well as to subvert patient access to the objected to services. Unpredictable future developments in drug R&D and resulting treatment and prevention options in medicine make the compromise position unrealistic.     

Conscientious objections,the nature of medicine,and the need for reformability

The debate over whether the medical profession should accommodate its members' conscientious objections (COs) has raged on in the bioethics literature and on legislative floors for decades. Unfortunately, participants on all sides of the debate fail to distinguish among different types of CO, a failure that obstructs the view of which cases warrant accommodation and why. In this paper, we identify one type of CO that warrants consideration for accommodation, called Nature of Medicine COs (NoMCOs). NoMCOs involve the refusal of physicians to perform actions they reasonably judge to be contrary to the nature of medicine and their professional obligations. We argue that accommodating NoMCOs can be justified based on the profession's need to preserve reformability. Importantly, this previously underdeveloped position evades some of the concerns commonly raised by opponents of CO accommodations.     

Might there be a medical conscience?

I defend the feasibility of a medical conscience in the following sense: a medical professional can object to the prevailing medical norms because they are incorrect as medical norms. In other words, I provide an account of conscientious objection that makes use of the idea that the conscience can issue true normative claims, but the claims in question are claims about medical norms rather than about general moral norms. I further argue that in order for this line of reasoning to succeed, there needs to be an internal morality of medicine that determines what medical professionals ought to do qua medical professionals. I utilize a constructivist approach to the internal morality of medicine and argue that medical professionals can conscientiously object to providing treatment X, if providing treatment X is not in accordance with norms that would have been constructed, in light of the end of medicine, by the appropriate agents under the appropriate conditions.     

WELLBEING,SCHIZOPHRENIA AND EXPERIENCE MACHINES

In the USA and England and Wales, involuntary treatment for mental illness is subject to the constraint that it must be necessary for the health or safety of the patient, if he poses no danger to others. I will argue against this necessary condition of administering treatment and propose that the category of individuals eligible for involuntary treatment should be extended. I begin by focusing on the common disorder of schizophrenia and proceed to demonstrate that it can be a considerable harm to a person's life without causing the person to be a danger to himself. I illuminate this claim by constructing a thought experiment concerning a person who slips on a banana peel and falls into a malfunctioning version of Robert Nozick's experience machine. I propose that the reasons why we should remove the person from the machine are the same reasons why we should administer involuntary treatment to individuals with schizophrenia. I rebut three objections to the analogy and conclude that if we believe that we have a duty to provide treatment for reasons relating to a person's wellbeing, it follows that we should reject the health or safety requirement and instead broaden the category of individuals who are eligible for involuntary treatment.     

Doctors Have no Right to Refuse Medical Assistance in Dying,Abortion or Contraception

In an article in this journal, Christopher Cowley argues that we have ‘misunderstood the special nature of medicine, and have misunderstood the motivations of the conscientious objectors’. We have not. It is Cowley who has misunderstood the role of personal values in the profession of medicine. We argue that there should be better protections for patients from doctors' personal values and there should be more severe restrictions on the right to conscientious objection, particularly in relation to assisted dying. We argue that eligible patients could be guaranteed access to medical services that are subject to conscientious objections by: (1) removing a right to conscientious objection; (2) selecting candidates into relevant medical specialities or general practice who do not have objections; (3) demonopolizing the provision of these services away from the medical profession.     

COMPETENCE,PRACTICAL RATIONALITY AND WHAT A PATIENT VALUES

According to the principle of patient autonomy, patients have the right to be self‐determining in decisions about their own medical care, which includes the right to refuse treatment. However, a treatment refusal may legitimately be overridden in cases where the decision is judged to be incompetent. It has recently been proposed that in assessments of competence, attention should be paid to the evaluative judgments that guide patients' treatment decisions. In this paper I examine this claim in light of theories of practical rationality, focusing on the difficult case of an anorexic person who is judged to be competent and refuses treatment, thereby putting themselves at risk of serious harm. I argue that the standard criteria for competence assess whether a treatment decision satisfies the goals of practical decision‐making, and that this same criterion can be applied to a patient's decision‐guiding commitments. As a consequence I propose that a particular understanding of practical rationality offers a theoretical framework for justifying involuntary treatment in the anorexia case.     

Sacrifice as Social Capital among Israeli Conscientious Objectors

This article considers counterhegemonic sacrifices as a means of social intervention, and in doing so explores the social efficacy of non-ritual sacrifice in the modern era. Ethnographically, this article examines the way Israeli conscientious objectors succeed in having their refusal of military service and the social costs they incur understood as sacrifices by the Israeli public. Ex-soldiers accumulate social capital in light of public perception that they have ‘paid the price’ for their beliefs. Other ethnographic contexts that further elucidate the ability of socially abject to use sacrifice to counterhegemonic effect are presented. I claim that the recognition of sacrifice depends on an intersubjective combination of sacrificial intention and community recognition. This article suggests that the meaning of sacrifice is determined by how sacrifice is used and understood in social context, and as such breaks ranks with literatures on sacrifice concerned with the intrinsic coherence of ritual sacrifice.     

Conscientious Objection in Healthcare Provision: A New Dimension

The right to conscientious objection in the provision of healthcare is the subject of a lengthy, heated and controversial debate. Recently, a new dimension was added to this debate by the US Supreme Court's decision in Burwell vs. Hobby Lobby et al. which effectively granted rights to freedom of conscience to private, for‐profit corporations. In light of this paradigm shift, we examine one of the most contentious points within this debate, the impact of granting conscience exemptions to healthcare providers on the ability of women to enjoy their rights to reproductive autonomy. We argue that the exemptions demanded by objecting healthcare providers cannot be justified on the liberal, pluralist grounds on which they are based, and impose unjustifiable costs on both individual persons, and society as a whole. In doing so, we draw attention to a worrying trend in healthcare policy in Europe and the United States to undermine women's rights to reproductive autonomy by prioritizing the rights of ideologically motivated service providers to an unjustifiably broad form of freedom of conscience.     

The conjoined twins and the limits of rationality in applied ethics

In this article I consider the case of the surgical separation of conjoined twins resulting in the immediate and predictable death of the weaker one. The case was submitted to English law by the hospital, and the operation permitted against the parents' wishes. I consider the relationship between the legal decision and the moral reasons adduced in its support, reasons gaining their force against the framework of much mainstream normative ethical theory. I argue that in a few morally dilemmatic situations, such a legalistic–theoretical approach cannot plausibly accommodate certain irreducible and ineliminable features of the ethical experience of any concrete individual implicated in the situation, and that this failure partly undermines its self–appointed role of guiding such an individual's conduct. For example, the problem as experienced by the judge and by the parents might not be the same problem at all, and some of their respective reasons may be mutually unintelligible or impotent. I certainly do not argue for a rejection of law or of moral theory; I merely challenge their implicit claim to comprehensiveness and their fixation with an idealised and putatively universal rationality modelled on converging scientific enquiry. Finally, I claim that at least in the twins' case there may be insufficient normative robustness to the conclusions reached, or indeed reachable, by the court in a situation where intuitions and moral reasons pull in fundamentally incommensurable directions; as such, there may be room for an acknowledgement of the spiritual, through a humble abstention from making a decision – which is not to be confused with deciding to do nothing.