In Defense of Medical Conscience Rights

Dr. Mark Hobart, a Catholic physician in Melbourne, Australia, is opposed to abortion. Not only is it contrary to his religion, but he believes it is the immoral taking of a human life.

That was his business – until the state of Victoria enacted a law in 2008 requiring all doctors asked for a legal abortion to either terminate the pregnancy or actively find another doctor willing to abort. And just like that, all general practitioners and ob-gyns suddenly faced the prospect of forced complicity in pregnancy terminations – whether or not they believed such actions were sinful, a violation of the Hippocratic Oath, or contrary to their moral beliefs.

Hobart must have known that he could, one day, face an agonizing choice: Participate in abortion or lose his medical license. These fears were realized in 2013 when a patient learned that her 19-week fetus was a girl. The disappointed woman and her husband told Hobart they wanted a boy. They asked the doctor for a sex-selection abortion. Hobart faced a decision that could risk his career.

Hobart decided to be true to himself. He informed the couple he would not perform the termination or assist them in finding another doctor.

Hobart decided to be true to himself.

The patient obtained the abortion elsewhere. When news of his refusal reached the media, Hobart was subjected to an ethics investigation for refusing to comply with the law. The prospect that he could lose his medical license became headline news throughout Australia. In the end, Hobart was not stricken from the medical rolls but received a letter of formal caution, a black mark on his career.

Other medical professionals who refused to participate in abortion have been treated even more harshly. In Sweden, a midwife named Ellinor Grimmark was fired from her hospital job – and professionally blacklisted throughout the country, despite an acute shortage of midwives – not because she was negligent or incompetent but solely because she refused to terminate pregnancies based on her religious beliefs. “Tolerant” Sweden had no tolerance for a midwife who wanted to deliver babies, not terminate fetuses. Grimmark was widely condemned by professional associations, hospital administrators, and newspaper editorials. Mona Sahlin, a prominent Swedish politician known for working against violent extremism, stated, “Those who refuse to perform abortions are in my opinion extreme religious practitioners.” Grimmark sued for discrimination but lost.

Another midwife was forced into retirement in the United Kingdom, not because she wanted to quit working or was professionally deficient—she had delivered five thousand babies in her thirty-year career – solely because she refused to supervise abortions, which, as a faithful Catholic, she considered a sin. From the Daily Mail story:

It was in 2014, after a grueling six-year battle that had taken Mary, now 63, and a fellow midwife, Connie Wood, all the way to the Supreme Court in London, that they finally lost their case. The judgment effectively decreed that while midwives can opt out of “frontline” abortion work, those in senior positions – like Mary and Connie – still have to supervise.

Rather than do that, Mary ended her career.

In the United States, medical professionals who oppose abortion have – for the moment, at least – an easier time. Federal law protects doctors, nurses, midwives, and others who refuse to participate in abortion and sterilization based on religious or moral objection against discrimination by employers that receive federal funding. Similarly, state laws that have legalized assisted suicide also provide conscience protections for doctors who refuse to prescribe lethally.

But the issue of conscientious objection in healthcare is heating up. For example, a regulation in Washington State requires pharmacists to dispense all legal prescriptions – no conscience allowed – including contraception and abortifacients such as RU 486. Meanwhile, the ACLU has sued several Catholic hospitals for refusing a requested sterilization, abortion, and sex reassignment surgery as being against Catholic moral teaching.

When the Trump Administration announced a plan to create a special office in the Department of Health and Human Services Office of Civil Rights to emphasize enforcement of medical conscience rights, the American College of Obstetricians and Gynecologists joined the Physicians for Reproductive Health to warn darkly that the proposal “could embolden some providers and institutions to discriminate against patients based on the patient’s health care decisions.” Similarly, The Massachusetts Medical Society opined that the new office could allow doctors to shirk their “responsibility to heal the sick.” Meanwhile, the New York Times editorialized angrily against the new proposed office, arguing that the Trump Administration was “putting the Bible before the Hippocratic Oath”—ironically missing the point that the Oath explicitly prohibits doctor participation in abortion.

Medical conscience has also been decried by notable bioethicists writing in the world’s most prestigious bioethical and medical journals. “Consensus Statement on Conscientious Objection in Healthcare,” published by Oxford University’s Practical Ethics, is a case in point. In the statement, bioethicists claim that existing legal protections shielding medical doctors from forced participation in abortion and assisted suicide (where legal) are “indefensible.” The statement urges that laws be amended to require all doctors either to perform all legal medical procedures they are qualified to provide or, if conscientiously opposed, be compelled to refer to a doctor willing to fulfill the patient’s request. In circumstances where such a doctor cannot be found or reasonably reached by the patient, the statement declares that objecting doctors should be forced to “perform the treatment themselves” regardless of their own moral beliefs.

Two internationally influential bioethicists, Julian Savulescu and Udo Schuklenk, joined the chorus in the journal Bioethics to claim that “Doctors Have No Right to Refuse Medical Assistance in Dying, Abortion or Contraception.” First, they argue that “the scope of professional practice is ultimately determined by society” and that the doctor’s own views on right and wrong are “irrelevant”:

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. It is then irrelevant how defensible the doctor’s own moral take on the patient’s actions is.

Perhaps the most notable bioethics attack on medical conscience was co-authored by Ezekiel Emanuel, one of the world’s most prominent bioethicists and a prime architect of President Obama’s Affordable Care Act. Writing in the New England Journal of Medicine, Emanuel and Ronit Y. Stahl assert that every physician is ethically required to participate in a patient’s legal medical request – so long as the service is not controversial among the professional establishment (explicitly including abortion). If doctors don’t like it? Ezekiel and Stahl are blunt: “Health care professionals who are unwilling to accept these limits have two choices: select an area of medicine, such as radiology, that will not put them in situations that conflict with their personal morality or, if there is no such area, leave the profession.”

Meanwhile, in Canada – where lethal injection euthanasia is legal – a new Ontario statute requires all doctors in the province to either euthanize legally qualified patients who ask to die, or actively procure a doctor they know would be willing to do the deed. When Catholic and other religiously and morally opposed doctors filed a lawsuit, contending that the law violated their Charter right to “freedom of conscience and religion,” the court agreed. But it then decreed that a patient’s right to receive “equitable access” to legal medical services – including euthanasia – trumps doctors’ rights to practice medicine according to their moral and religious beliefs, stating: “It would appear that, for these [objecting] physicians, the principal, if not the only, means of addressing their concerns would be a change in the nature of their practice if they intend to continue practicing medicine in Ontario.” Thus, a trained and experienced oncologist who is morally opposed to euthanasia could have to become, say, a podiatrist, or find another career.

Most “medical conscience” cases to date have involved issues of conservative dissent, such as refusal to prescribe or dispense contraceptives and abortifacients, perform abortions, or euthanize patients. This could tempt some who support those interventions to approve of coercing doctor participation. But if patients have a legal right to receive any legal medical procedure from any qualified doctor, wouldn’t that also mean that doctors could be forced to participate in interventions that offend liberal viewpoints? For example, should every pediatrician or general surgeon could be forced to perform infant circumcisions upon request of the baby’s parents? Circumcision is a religious obligation for Jews and is usually desired by Muslims as a matter of faith. Today, there is an energetic social movement to ban infant circumcision, and while legal, many consider the practice to be unethical, a mutilation that impedes sexual enjoyment, a form of child abuse, and a violation of a person’s right to bodily integrity and self-determination.

A doctor who believes that it is profoundly immoral and unethical to surgically alter an infant patient who cannot consent, would, under Emanuel and Stahl’s views, be forced to “mutilate a male baby” or find the parents a doctor with no such moral qualms. As a society, do we also want to coerce all these doctors to get out of pediatrics or leave medicine altogether?

Medical conscience rights should not be absolute.

Now consider some future potential healthcare controversies already on the boil that could one day legally enter the clinical setting: organ harvesting from people diagnosed as persistently unconscious; gene-editing of human embryos; “treating” able-bodied people who identify as disabled by amputating healthy limbs or severing spinal cords. If these and other controversial proposals ever become legal, should the law require doctors, nurses, pharmacists, and others to participate if they consider them to be immoral or sinful?

If we force healthcare professionals to violate their religious or moral beliefs, a “brain drain” could wrack the healthcare sector with many older doctors and nurses leaving and taking their depth of experience and knowledge with them. Talented young people who would make splendid doctors, nurses, or pharmacists may avoid the field altogether rather than risk being coerced into taking actions they consider immoral.

Medical conscience rights should not be absolute. For example, legal protections should not permit a doctor to refuse to save a patient’s life based on discriminatory beliefs. A racist doctor should not be allowed to refuse CPR because a dying patient is a racial minority, or refuse to treat a man with AIDS because he is gay. In cases where the patient’s sexual orientation might become a factor, such as assisting gay couples who want to have children, the interventions refused would be wholly elective.

Today’s society is morally polyglot – and growing more so – with resulting controversies roiling healthcare as they have other sectors of society. In such a milieu, comity – not coercion – is the essential ingredient to maintaining societal cohesion. Medical conscience allows patients to obtain morally contentious procedures from willing professionals, while also permitting dissenting medical professionals to stay true to their own beliefs and continue to serve patients and society. If people want an abortion – or an assisted suicide, circumcision, or sex reassignment surgery they should not be allowed to force an unwilling doctor to give them one. The principles of liberty and tolerance require no less.