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.     

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.     

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.     

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.     

A ZYGOTE COULD BE A HUMAN: A DEFENCE OF CONCEPTIONISM AGAINST FISSION ARGUMENTS

In this paper I defend the view that a zygote is a human from the fission objection that is widely thought to be decisive against the view. I do so, drawing upon a recent discussion of this issue by John Burgess, by explaining in detail the metaphysical position the proponent of the view should adopt in order to rebut the objection.     

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.     

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.     

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.     

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.     

CONSCIENTIOUS OBJECTIONS IN PHARMACY PRACTICE IN GREAT BRITAIN

Pharmacists who refuse to provide certain services or treatment for reasons of conscience have been criticized for failing to fulfil their professional obligations. Currently, individual pharmacists in Great Britain can withhold services or treatment for moral or religious reasons, provided they refer the patient to an alternative source. The most high‐profile cases have concerned the refusal to supply emergency hormonal contraception, which will serve as an example in this article. I propose that the pharmacy profession's policy on conscientious objections should be altered slightly. Building on the work of Brock and Wicclair, I argue that conscientious refusals should be acceptable provided that the patient is informed of the service, the patient is redirected to an alternative source, the refusal does not cause an unreasonable burden to the patient, and the reasons for the refusal are based on the core values of the profession. Finally, I argue that a principled categorical refusal by an individual pharmacist is not morally permissible. I claim that, contrary to current practice, a pharmacist cannot legitimately claim universal exemption from providing a standard service, even if that service is available elsewhere.     

Complexity,adaptive complexity and the Creative View of natural selection

In this paper, I respond to arguments proposed by Brunnander in this journal issue concerning my position regarding the Creative View of natural selection (Razeto-Barry & Frick, 2011). Brunnander argues that (i) the Creative View we defend does not serve to answer William Paley’s question because (ii) Paley’s question is “why there are complex things rather than simple ones” and (iii) natural selection cannot answer this question. Brunnander’s arguments for (iii) defend a Non-creative View of natural selection (sensu Razeto-Barry & Frick, 2011). Here I claim that Brunnander’s arguments for (iii) are mistaken and I also argue that even accepting (iii) we do not have to accept (i), given that statement (ii) is historically and conceptually flawed. Thus here I analyze Paley’s question from a historical point of view and from a contemporary perspective in a quest for the potential conceptual relevance of Paley’s question today. In this vein I argue that from a contemporary point of view statement (iii) may be correct but for different reasons than those adduced by Brunnander.     

Principle or pathology? Adjudicating the right to conscience in the Israeli military

The Israeli military's Conscience Committee evaluates and exempts pacifists from obligatory military service, based explicitly on concern for liberal tolerance. However, I found that liberal pacifist applicants’ principled objections to violence challenged the state, and as such, applicants who articulated their refusal in such terms are rejected by the military review board. By contrast, pacifist conscientious objection based in embodied visceral revulsion to violence did not challenge the state and moral order, and such cases were granted exemption. Objections based in understanding pacifism as a physical incapacity depoliticizes it by making it incommensurable with public moral debate concerning military service. The pathologization of pacifism demonstrates a contradiction between liberalism's ideology and its practices, revealing that the limits of liberalism are not only exterior, in nonliberal alterity, but also on liberalism's own interior frontiers.     

Forget Evil: Autonomy,the Physician–Patient Relationship,and the Duty to Refer

Aulisio and Arora argue that the moral significance of value imposition explains the moral distinction between traditional conscientious objection and non-traditional conscientious objection. The former objects to directly performing actions, whereas the latter objects to indirectly assisting actions on the grounds that indirectly assisting makes the actor morally complicit. Examples of non-traditional conscientious objection include objections to the duty to refer. Typically, we expect physicians who object to a practice to refer, but the non-traditional conscientious objector physician refuses to refer. Aulisio and Arora argue that physicians have a duty to refer because refusing to do so violates the patient’s values. While we agree with Aulisio and Arora’s conclusions, we argue value imposition cannot adequately explain the moral difference between traditional conscientious objection and non-traditional conscientious objection. Treating autonomy as the freedom to live in accordance with one’s values, as Aulisio and Arora do, is a departure from traditional liberal conceptions of autonomy and consequently fails to explain the moral difference between the two kinds of objection. We outline how a traditional liberal understanding of autonomy would help in this regard, and we make two additional arguments—one that maintains that non-traditional conscientious objection undermines society’s autonomy, and another that maintains that it undermines the physician-patient relationship—to establish why physicians have a duty to refer.     

What can natural selection explain?

One approach to assess the explanatory power of natural selection is to ask what type of facts it can explain. The standard list of explananda includes facts like trait frequencies or the survival of particular organisms. Here, I argue that this list is incomplete: natural selection can also explain a specific kind of individual-level fact that involves traits. The ability of selection to explain this sort of fact (‘trait facts’) vindicates the explanatory commitments of empirical studies on microevolution. Trait facts must be distinguished from a closely related kind of fact, that is, the fact that a particular individual x has one trait rather than another. Whether or not selection can explain the latter type of fact is highly controversial. According to the so-called ‘Negative View’ it cannot be explained by selection. I defend the Negative View against Nanay’s (2005) objection.     

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.     

Reefer Madness: Legal & Moral Issues Surrounding the Medical Prescription of Marijuana

California, Arizona, and several other states have recently legalized medical marijuana. My goal in this paper is to demonstrate that even if one grants the opponents of legalization many of their contentious assumptions, the federal government is still obligated to take several specific steps toward the legalization of medical marijuana. I defend this claim against a variety of objections, including the claims: that marijuana is unsafe, that marijuana cannot be adequately tested or produced as a drug, that the availability of synthetic THC makes marijuana superfluous, and especially that legalizing medical marijuana will increase recreational use by 'sending the wrong message '. I then go on to argue that given the intransigent position of the federal government on this issue, state governments are justified in unilaterally legalizing medical marijuana as an act of civil disobedience.
A large portion of this paper consists of an extensive response to the objection that legalizing medical marijuana will 'send the wrong message '– which I take to be the primary impediment to legalization. This objection basically claims that the consequences of withholding legalization (especially preventing increased recreational use) are superior to those of legalizing medical marijuana. I argue that legalization is justified even if one were to grant both that the harms of legalization outweighed its benefits and that utilitarianism is true. This requires a subtle and somewhat extended discussion of utilitarian moral and political theory.     

Conscientious objection in healthcare: How much discretionary space best supports good medicine?

Daniel Sulmasy has recently argued that good medicine depends on physicians having a wide discretionary space in which they can act on their consciences. The only constraints Sulmasy believes we should place on physicians’ discretionary space are those defined by a form of tolerance he derives from Locke, whereby people can publicly act in accordance with their personal religious and moral beliefs as long as their actions are not destructive to society. Sulmasy also claims that those who would reject physicians’ right to conscientious objection eliminate discretionary space, thus undermining good medicine and unnecessarily limiting religious freedom. I argue that, although Sulmasy is correct that some discretionary space is necessary for good medicine, he is wrong in thinking that proscribing conscientious objection entails eliminating discretionary space. I illustrate this using Julian Savulescu and Udo Schuklenk’s system for restricting conscientious objections as a counter‐example. I then argue that a narrow discretionary space constrained by professional ideals will promote good medicine better than Sulmasy’s wider discretionary space constrained by his conception of tolerance. Sulmasy’s version of discretionary space would have us tolerate actions that are at odds with aspects of good medicine, including aspects that Sulmasy himself explicitly values, such as fiduciary duty. Therefore, if we want the degree of religious freedom in the public sphere that Sulmasy favours then we must decide whether it is worth the cost to the healthcare system.     

Signaling without cooperation

Ethological theories usually attribute semantic content to animal signals. To account for this fact, many biologists and philosophers appeal to some version of teleosemantics. However, this picture has recently came under attack: while mainstream teleosemantics assumes that representational systems must cooperate, some biologists and philosophers argue that in certain cases signaling can evolve within systems lacking common interest. In this paper I defend the standard view from this objection.     

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.