Medical Conscientious Objection: Overruled or Modified?

by Gerald Dworkin

At least since Roe v. Wade was decided in 1973 the issue of Conscientious Objection  (henceforth CO) has been an important one in the context of Catholic hospitals and women patients.  Such hospitals object to the provision of abortions, contraceptives, sterilization, fertility care, and “gender-affirming care” such as hormone treatments and surgeries.

In 1973 the Church (the Senator not the institution!) Amendment was passed. This stated that individuals in institutions receiving federal funds may not be required to perform sterilization or abortions contrary to their religion or conscience. No such individual shall be required to perform or assist in any health service program or research activity if such program or activity was contrary to his religious beliefs or moral convictions.

In 1997 when Medicare Advantage was passed it included a restriction that no such plan, nor any Medicaid-managed plan, was required to “provide, reimburse for, or provide coverage of a counseling or referral service if the organization objected to the service on moral or religious grounds.”

In 2010 the Patient Protection and  Affordable Care act said a State could prohibit abortion in qualified health plans. It also introduced a new restriction. Government-funded institutions may not discriminate against individuals or institutions on the basis that such institutions do not provide any health care item or service for the purpose of causing, or for assistance in  causing, the death of any individual such as by assisted-suicide.

The last clause indicates  that the issue of end of life care has assumed some prominence. Religious  institutions are specifically exempted by most states from honoring requests to refuse or withdraw lifesaving treatment,  and most recently in California a number of hospitals have forbidden their doctors to provide medically-assisted dying to patients even if the procedure takes place in the patient’s home and the physician is not present.

While it is often the case that such institutions assume an obligation to refer the patient to institutions which have no objection to the treatment at issue some object to such referrals as being complicit in the evil and refuse to do so.

To show what is at stake, here is an actual case. I am not claiming that such cases are frequent or typical. But it is important to understand that such cases occur,

At a Catholic hospital in a large Eastern city, Dr. S admits a patient nineteen weeks pregnant and miscarrying. He recommends,and the patient agrees to, the medically indicated treatment—ending the pregnancy. But the hospital ethics committee denies his request because of the institution’s moral objection to abortion. Although  the fetus has no chance of survival, an ultrasound still detects a fetal heartbeat. The woman becomes septic, with a 106-degree fever and profuse bleeding. Watching the patient “dying before our eyes,” the doctor makes a decision: he performs the abortion. The patient spends another ten days in intensive care and suffers permanent injuries.

Conscientious Objection arose initially in the case of military service. Some persons called up under a draft refused to serve because they had moral objections either to war in general or to particular wars. They refused to kill enemy soldiers in war. While the Quakers were the group most likely to appeal to considerations of conscience, the arguments for not punishing conscientious  objectors were often secular and the laws offering alternative service were extended to those who objected on secular grounds.

Since conscription was abolished the issue of CO has shifted to issues of discriminatation and health care. While the issues of discrimination in providing services–the recent controvesy about cakes for gay marriages–  are important I want to concentrate in this blog on CO in the provision of health care.

We are considering the legitimacy of CO in a  profession which individuals have chosen to enter, have to be trained in, and whose services are offered to the public.  Of course there are many legitimate reasons why a physician may refuse a given medical service. It may be illegal, unsafe given the patient’s history, medically inappropriate, or a violation of clinical norms. It may be that the physician does not feel competent in the procedure requested. It even may be the case that a physician not wanting to treat or perform certain procedures for moral or religious considerations has chosen not to learn such procedures.  For example, a physician who is opposed to Infant circumcision may choose not learn how to perform the operation. It is also within a physicians prerogative to choose not to specialize in a given medical area because she disapproves of that area. 

It is also firmly established that doctors may not discriminate against patients because of objections to the patient. The AMA code of ethics states doctors “ may not discriminate against a patient on the basis of gender identity, sexual orientation, or other nonclinical characteristics.”

So the issue may be defined as the following. May a physician who has chosen to receive training and competence in some specific area of medicine refuse to exercise that competence on a patient who requests a specific procedure in that area of competence because he has moral or religious objections to that procedure or treatment?  

In some cases the answer is clearly he may not because the procedure in question is essential to the nature of the specialty.  An internist may not refuse to give a physical examination to a female patient because his religion forbids him to have physical contact with a member of the opposite sex.  An internist who cannot give a physical exam is no more an internist than a surgeon who cannot perform surgery.

Leaving such odd cases aside what are the arguments for CO?   

There do seem to be cases of medical treatment that most of us would judge as morally objectionable and believe that health care providers ought not to participate in. In Guantanamo prisoners  went on a hunger strike to protest the torture that they were subjected to. Nurses were ordered to force-feed such prisoners and refused to do so. This case, however, has many special features that are not relevant to most CO in medicine. It is not part of a medical rationale for force-feeding someone that he is engaged in a protest against torture.  A similar case is the presence of physicians at the torture of prisoners whose function is to monitor the patient so that they do not die and torture may continue.

The argument for CO in these cases is that  in the context, these are not medical procedures. They are performed against the recipient’s wishes and are not in service to any ends of the recipient which are promoted by medical treatment.. But abortions, sterilization, contraception, gender re-assignment surgery are at the request of a recipient and do promote important goals they have.  So for these procedures CO has to have a different rationale.

It is  true that physicians have some discretion about who to accept as patients , what areas of medicine to specialize in, and what procedures within a specialty to be trained in. Given this freedom to practice medicine and to refuse some  patients for specific reasons– she cannot take on new patients, she prefers to deal with poor clients who cannot readily find doctors, she prefers to deal with female patients only, she prefers to confine her practice to delivering new babies rather than to treat infants. So why isn’t one reason to refuse a treatment or procedure that the doctor has strong moral beliefs that the treatment is wrongful? 

The motivation for allowing the doctor to refuse is the same one that provided a justification  for CO to pacifists during times of war. To require such a person to participate in an activity which he believes is unjust and a violation of rights is to demand that he act counter to principles which define for him what kind of person to be.

Following Cecil Laborde we can speak of “integrity-protecting commitments” where integrity is thought of as “an ideal of congruence between one’s ethical commitments and one’s actions…a commitment, manifested in a…refusal to act that allows an individual to live in accordance with how she thinks she ought to live.”

It is important to understand that CO, although associated most prominently with religious institutions, can be argued for on completely secular moral grounds.  The recent case of adding ritual circumcision of infants to the public health system in Norway clearly illustrates that refusal to perform certain operations need not be based on religious grounds. Many Norwegian doctors refused to participate in such surgeries on the grounds that they objected to a mutilation of a non-consenting patient with no medical justification. As one doctor put it “If one had a religious group that required the amputation of a foot nobody would perform that operation.

I leave as an exercise  for the reader the case that this quotation brings to mind — body dis-morphic disorder. These are cases of individuals  who feel that their leg is a foreign part of the body and are greatly discomforted by its presence. They request its removal. Many doctors refuse to perform the operation in spite of the fact that many patients report a greatly improved quality of life after the operation.

But even with respect to less controversial CO in the context of health care we must insist on protections for patients who want or need the procedures for which we allow CO.  CO places a serious burden on those to whom service is denied and those who impose that burden are morally required to take measures to alleviate that burden. 

There are two such requirements. First, patients should be given clear notice by hospitals and doctors that such CO measures are in force. Hospitals should make it clear by signage, or other means, that they have such restrictions on medical treatment. Ambulances which transport patients –usually to the nearest facility–should inform patients that such hospitals have such limitations.  Doctors who refuse treatment are obligated to refer patients to doctors who have no such restrictions.  

One way of seeing the force of the need to mitigate the potential harm to patients is to see this as implicit in the justification given for CO in the first place. This justification was in terms of protecting the ability of CO’s to live a valuable life as they see it. But having access to necessary health care is one of the most important requirements for anyone leading ANY  desirable and valuable life. So the very same consideration that justifies allowing CO’s  is present , even more centrally, in the protection of the health care interests of patients.

Consider the recent rule proposed by the Trump administration which would allow employers with religious or moral objections to contraception to opt out of paying for birth control under the Affordable Care Act. These organizations have refused the compromise offered to them of informing the insurance companies of their objection thus enabling the companies to subsidize such costs. This accomodation was offered to them in a decision by Judge Alioto–hardly a flaming liberal.  Nevertheless many religious groups challenged the accommodation, saying that objecting and providing the required information would make them complicit in conduct that violated their faith. I would argue that the burdens of complicity, such as they are, cannot be justified in comparison to the harm that the 100,000 or so women affected , many of whom could not afford the most effective forms of birth control, would incur.