The Moral Necessity of Conscientious Objection Protections
I. Introduction
Conscientious objection laws, and calls for the limitation and/or elimination of a health care practitioner’s ability to object to providing treatment on moral grounds is a perennial issue. As new laws are enacted legalizing and protecting certain medical treatments, such as gender transition surgery and physician assisted suicide, often religious exceptions and/or conscientious objections are not expressly written into the law, causing confusion for health care practitioners about his or her right to object to providing such treatments on religious or moral grounds. Likewise, there is uncertainty and debate among scholars, health care practitioners, patients and employers as to whether conscientious objection is permissible in certain instances, and what actions must be taken in order to properly invoke conscientious objection protections. Further, many question whether a health care practitioner’s conscientious objection is fundamentally incompatible with the health care practitioner’s duty to his or her patients. Some even go as far as to argue that invoking a conscientious objection constitutes patient abandonment, a form of professional misconduct that could lead to discipline by the state’s licensing board.
This paper argues that health care providers who invoke morally sound and appropriate conscientious objection protections in the workplace are not only not failing in their duty and obligations towards their patients, but are actually fulfilling those very duties and responsibilities more meticulously and attentively than those who engage in the morally unacceptable acts, such as performing or participating in abortion, sterilization, gender transition surgery and physician assisted suicide, that conscientious objection policies are designed to enable health care practitioners to avoid.
Conscientious objection laws are appropriate when the laws are narrowly tailored to allow a health care practitioner to refuse to provide or participate in certain types of interventions that are incompatible with his or her deeply held personal, religious, or moral beliefs. Proponents of restricting or eliminating conscientious objection laws argue that these laws broadly enable health care practitioners who are far removed from the objectionable intervention to conscientiously object (for example, a laboratory technologist conscientiously objecting to review bloodwork of a woman who had an abortion three years ago). Yet, conscientious objection laws, when properly crafted, do not provide a carte blanche ability to object or opt out of certain interventions such that health care practitioners could refuse to provide routine, morally-unobjectionable medical care such as influenza vaccines or blood work. The laws providing protection for conscientious objection, of course, must to be tailored in such a way as to assure that conscientious objection is possible only where authentic moral concerns exist, whether the concern exists when a health care provider is asked or compelled to directly perform immoral procedures or to cooperate in evil with unjustifiable causal proximity.
Despite some arguments to the contrary, conscientious objection laws also do not promote unjust discrimination. Proponents of restricting or eliminating conscientious objection laws argue that conscientious objection laws enable a health care practitioner to engage in discrimination. They argue that conscientious objection protections enable health care practitioners to refuse to provide routine, morally permissible care to certain individuals on the basis of a conscientious objection (for example, permitting a practitioner to refuse to provide dental care to a person who is transgender). Proper conscientious objection protections do not permit this type of objection, thereby attempting to ensure that individuals obtain the routine medical care they need. Further, Catholic moral teaching requires that health care practitioners treat each patient without discrimination and “in a way that respects human dignity and the eternal destiny of all.”
Finally, proponents of restricting or eliminating conscientious objection protections argue that conscientious objection enables health care practitioners to evade their duty to patients. Truthfully, no conscientious objection law permits a health care practitioner to withdraw from providing a medically necessary intervention without securing appropriate continuity of care for the patient.
Ultimately, conscientious objection is entirely compatible with a heath care practitioner’s duty to ensure that a patient receives the appropriate and medically necessary care that the patient requires while enabling the health care practitioner to meet his or her moral and religious convictions.
II. Ethical and Religious Directives
Catholic health care practitioners must provide care in accordance with the Ethical and Religious Directives for Catholic Health Care Services (“ERDs”), which interprets the teachings of the Catholic Church as it relates to health care delivery. The ERDs must be followed in all Catholic health care facilities, and there, health care interventions that are considered to be immoral, either intrinsically or because of the proximity to an immoral procedure, are not permitted. Conscientious objection protections become necessary when Catholic health care practitioners who work in secular facilities where immoral health care interventions are performed, must reconcile Catholic moral teaching with the demands of society, the secular health care facility, and/or the patients.
Specifically, ERD 27, 28, and 59 speak to when Catholic health care practitioners should raise a contentious objection to a patient’s requested or desired treatment. The text of the relevant ERDs are reproduced below.
“Free and informed consent requires the person or the person’s surrogate receive all reasonable information about the essential nature of the proposed treatment and its benefits; its risks, side-effects, consequences and cost; and any reasonable and morally legitimate alternatives, including no treatment at all.” ERD 27.
“Each person or the person’s surrogate should have access to medical and moral information and counseling so as to be able to form his or her conscience. The free and informed health care decision of the person or the person’s surrogate is to be followed as long as it does not contradict Catholic principles.” ERD 28.
“The free and informed judgment made by a competent adult patient concerning the use or withdrawal of life-sustaining procedures should always be respected and complied with, unless it contrary to Catholic moral teaching.” ERD 59.
The difficulty for Catholic health care practitioners is when a patient requests a treatment that is contrary to Catholic moral teaching.
III. Brief History of Conscientious Objection Laws in the United States
The first federal health care conscience clause, called the “Provider Conscience regulations” which protected the right of physicians, nurses, and hospitals to refuse to conduct an abortion or sterilization was passed in 1973, following the Supreme Court decision in Roe v. Wade, which legalized abortion in certain instances. On the basis of this federal law, many states enacted similar legislation. In the subsequent years, federal law continued to expand to enable a broader group of health care practitioners to invoke religious exception from providing abortion or sterilization services. These amendments and expansions included nondiscrimination provisions that protected health care providers who conscientiously objected to participating in or providing certain health care procedures from discrimination by employers. Then, in 2009, the Bush administration significantly expanded the federal Provider Conscience regulations to protect “any individual” from being mandated to “perform or assist in the performance of any part of a health services program or research activity funded” by the Department of Health and Human Services, if such activity is contrary to the individual’s “religious beliefs or moral convictions.” , This law, hereinafter called the “Bush Administration Law,” defined “individual” as “physicians, other healthcare providers, hospitals, laboratories, insurance companies, employees, volunteers, trainees, contractors and other persons” who work for an entity that receives funding from the Department of Health and Human Services. The Bush Administration Law also broadly defined the phrase “assist in the performance of any part” as “any activity with a reasonable connection to a procedure.” This was a significant expansion of the Provider Conscience regulations, which previously had only enabled health care providers to object to providing or participating in abortions and sterilizations.
Upon taking office, the Obama administration again amended the Provider Conscience regulations, reverting to its original form, reducing the protections provided to only the ability to object to abortion and sterilization. Since taking office, the Trump administration has taken steps to restore broader conscious protections to health care providers. For example, in November 2018, the Trump administration issued a new regulation expanding the religious exemption to the contraceptive coverage requirement under the Patient Protection and Affordable Care Act.
IV. Arguments against Conscientious Objection Protections
Because the Provider Conscience regulations have been nearly consistently evolving over the last forty years, health care practitioners are in a near constant state of flux, often unsure of the protections that they are afforded. Many people, including health care practitioners, legal scholars, and both secular and religious ethicists have written pieces arguing for or against the need for provider conscience protections. The major arguments against conscientious objection protections are the following: (a) conscientious objection protections are too broad, enabling health care practitioners to object to virtually any medical treatment ; (b) objection to or abstaining from providing certain health care services on the basis of a deeply held religious belief violates medical ethics ; and (c) conscientious objection protections enable health care practitioners to engage in unlawful discrimination.
(a) Conscientious objection protections are too broad, enabling health care practitioners to object to virtually any medical treatment.
In her article “Conscientious Objection Gone Awry – Restoring Selfless Professionalism in Medicine” which was published in the New England Journal of Medicine mere months after the Bush Administration Law had broadened the scope of conscience protection laws and just before the Obama Administration’s retraction of those laws would take effect, Julie D. Cantor, M.D., J.D., argued that the breadth and scope of the Bush Administration Law could “cause health care to grind to a halt.” Further, Cantor argues that there has been a “‘conscience creep’ in which all behavior becomes acceptable.” At the time that Cantor’s article was published, the American Medical Association (“AMA”) had also issued a statement that it believed the Bush Administration Law was “overly broad and could lead to differing interpretations causing unnecessary confusion and disruption among health care institutions and professionals, thereby hindering patient access to care.”
The AMA and Cantor have gone too far. As an initial matter, any person who mounts a conscientious objection to providing certain medical treatment must have a sincerely held religious belief. The ERDs prescribe without ambiguity what health care procedures and treatments violate Catholic moral teaching. Those procedures include (but are not limited to) abortion, sterilization, in vitro fertilization, and physician assisted suicide. Aside from prohibiting certain procedures, Catholic moral teaching requires that each person be treated with dignity, and be afforded the ability to make health care decisions for themselves. The ERDs do not permit health care providers to object to providing any care unless the care is contrary to Catholic moral teaching.
For Cantor to insinuate that health care practitioners will routinely exaggerate the extent of their conscientious objection is not supported by any evidence. Despite the AMA’s warning and Cantor’s bold statement that conscience protection laws are too broad, enabling health care practitioners to opt out of virtually any procedure, neither the AMA nor Cantor provided any evidence that this happens. Cantor cites no cases, news articles, or the like, in which a physician’s conscientious objection is challenged for going too far. This, of course, is not to say that it does not happen. One article cites a case in New Jersey in which the University of Medicine and Dentistry of New Jersey (“UMDNJ”) had twelve nurses who asserted a broad conscientious objection to providing care to patients having an abortion.
“The unfair effects of allowing [conscientious objection] can be seen at the University of Medicine and Dentistry of New Jersey, which had to hire additional staff to make up for the refusal by 12 nurses to have any contact whatsoever with patients having an abortion – even routine tasks like taking a temperature, filling out paperwork, or walking a patient to the door after recovery. These nurses, who had essentially abandoned their professional duties and discriminated against patients, even filed a lawsuit against the hospital for “forcing” them to assist in abortion care against their religious objections.”
It is clear from the tone of this quotation that the authors believe this to be an overreach of the protections of conscientious objection protections. However, clearly, a nurse who assists in the performance of an abortion, even if the nurse is merely completing paperwork to enable to abortion to occur, would be formally cooperating with evil because of the casual connection between the evil act and the nurse’s involvement. It, therefore, was proper for the nurse conscientiously object to participating in the care of those patients. It may be argued that a nurse who walks a patient to the door after recovery is unlikely to be engaging in more than remote, mediate cooperation with evil because the nurse does not intend the evil act, and did not contribute to it. However, the analysis is not quite that simple and would require additional information to determine whether that is the case. What is clear, however, is that UMDNJ was able to deal with the fact that its nurses raised a conscientious objection to participating in abortions, disproving Cantor’s theory that “health care will grind to a halt.”
Indeed, there are certainly practitioners who misunderstand the principles of cooperation with evil, and refuse to provide certain health care services that would not, in fact, violate their religious beliefs. For example, nurses have erroneously cited a religious objection to performing a dilation and curettage procedure when a woman has already miscarried the fetus when performing this procedure is not contrary to the ERDs. But what Cantor suggests is more sinister than that. She suggests that health care providers will consider themselves to be virtually excused from providing any health care on the basis of a conscientious objection. The rights protected by the Conscience Protection Laws are not absolute and do not permit this. Therefore, Cantor’s concerns are overstated.
In her article, Cantor proposes the absurd solution that, instead of protecting religious freedom in health care and enabling health care practitioners to opt out of providing certain health care services, health care practitioners who have religious objections to providing certain types of treatment choose a different field or profession. Specifically, Cantor states,
“As the gatekeepers to medicine, physicians and other health care providers have an obligation to choose specialties that are not moral minefields for them. Qualms about abortion, sterilization, and birth control? Do not practice women’s health. […] Conscience is a burden that belongs to the individual professional; patients should not have to shoulder it.”
Cantor is not the only one who has promulgated the idea that individuals who have religious or moral objections to certain health care interventions should choose a different profession. This sentiment has persisted before Cantor’s paper, and it continues to persist today. Christian Fiala and Joyce H Arthur, in their article “‘Dishonourable Disobedience’ – Why Refusal to Treat in Reproductive Healthcare Is Not Conscientious Objection” take it one step further, arguing that “[m]edical students entering the Ob/Gyn specialty should be informed about the full scope of the specialty, including treating women with unwanted pregnancies. Students should be rejected if they do not wish to learn and prescribe contraception or perform abortions for [conscientious objection] reasons.” Not only does this argument suggest a course of action which, if followed, would run afoul of laws which protects medical students’ right to object to participating in abortion and sterilization, it also promotes the very discrimination that these writers appear to be so concerned about.
(b) Objection to or abstaining from providing certain health care services on the basis of a deeply held religious belief violates medical ethics.
Cantor and others argue that asserting a conscientious objection to participating in certain health care procedures leads health care providers to shirk his or her responsibilities to patients thereby engaging in professional misconduct and violating medical ethics. Specifically, she states,
“Patients need information, referrals, and treatment. They need all legal choices presented to them in a way that is true to the evidence, not the randomness of individual morality. […] Patients need assurance that the standard of care is unwavering. They need to know that the decision to consent to care is theirs and that they will not be presented with half-truths and shades of gray when life and health are in the balance.”
Cantor’s argument is flawed in two respects: first, she assumes, rather maliciously, that physicians who assert a conscientious objection will deviate from the standard of care, thereby violating medical ethics, and, second, she assumes health care providers will not provide patients with all information necessary to enable them to make free and informed decisions about their health care.
First, the AMA recognizes that conscientious objection is an integral part of medical ethics. The AMA Code of Medical Ethics permits physicians to abstain from providing care to patients who are seeking care that is “incompatible with the physician’s deeply held personal, religious, or moral beliefs” . The AMA’s “Physician Exercise of Conscience” recognizes that physicians are “moral agents” and that “preserving opportunity for physicians to act (or to refrain from acting) in accordance with the dictates of conscience in their professional practice is important for preserving the integrity of the medical profession as well as the integrity of the individual physician.”
The Physician Exercise of Conscience asserts the ethical importance of “fidelity to patients and respect for patient self-determination” and that “physicians should have considerable latitude to practice in accord with well-considered, deeply held beliefs.” It also recognizes that “physicians’ freedom to act according to conscience is not unlimited. Physicians are expected to provide care in emergencies, honor patients’ informed decisions to refuse life-sustaining treatment, and respect basic civil liberties and not discriminate against individuals in deciding whether to enter into a professional relationship with a new patient.” It is clear by the AMA’s endorsement of and recognition of the importance of conscientious objection that invoking conscience protection should not conflict with the standard of care. Of course, many of the health care procedures to which Catholic providers object are not likely to arise in an emergency situation. A patient will never need emergency in vitro fertilization or emergency physician assisted suicide. Therefore, invoking a conscientious objection to providing these services does not cause harm to the patient. The patient is free to simply find another provider. Further, because of the principle of double effect, Catholic moral teaching allows for abortion in certain emergency circumstances in which the life of the mother is in danger, and there is no way to save the life of both the mother and the fetus. Accordingly, conscientious objection is not in contravention to medical ethics and does not enable health care providers to shirk their responsibilities to patients.
are actually fulfilling those very duties and responsibilities more meticulously and attentively than those who engage in the morally unacceptable acts, such as performing or participating in abortion, sterilization, gender transition surgery and physician assisted suicide, that conscientious objection policies are designed to enable health care practitioners to avoid
Cantor’s second point, that health care providers will withhold information from patients because of their morals, is again without support. The ERDs clearly state that a person must be given “all reasonable information about the essential nature of the proposed treatment and its benefits; its risks, side-effects, consequences and cost; and any reasonable and morally legitimate alternatives, including no treatment at all.” The ERDs clearly do not permit health care providers to withhold necessary information from patients.
(c) Conscientious objection protections enable health care practitioners to engage in unlawful discrimination.
Finally, it is argued that conscientious objection “invites discrimination against people needing the services being refused, and infringes their freedom of conscience.” Conscientious objection in medicine contravenes the ethical obligation to serve the public, which is why it is dishonourable disobedience. “Despite this, most religiously affiliated institutions that exercise CO are publicly funded and serve entire communities with diverse views. In effect, female citizens of countries with government-funded healthcare are paying taxes to support a discriminatory system that denies them essential care based on their child-bearing capacity.” Of course, this is not the case. As discussed in detail above, conscientious objection protections are not unlimited. The protections do not broadly enable health care providers to refuse to provide care to patients for discriminatory reasons. Neither conscientious protection laws nor Catholic moral teachings enable health care providers to engage in any form of discrimination or opt out of providing medically necessary procedures for discriminatory reasons.
V. Conclusion
Conscientious objection laws provide important protections to health care practitioners and enable health care practitioners to practice medicine while adhering to Catholic moral teachings and the ERDs. Health care providers who invoke morally sound and appropriate conscientious objection protections in the workplace are fulfilling their duty to their patients more attentively than those who provide the morally unacceptable care that conscientious objection policies are designed to help practitioners avoid.
Conscientious objection laws are appropriate when the laws are narrowly tailored to allow physicians who hold deep moral convictions to refuse to provide certain types of interventions that are incompatible with the physician’s deeply held personal, religious, or moral beliefs. Conscientious objection laws, when properly crafted, do not enable health care practitioners to either object to providing routine, morally-unobjectionable medical care or refuse to provide certain medical treatment because of some sort of discriminatory animus. No conscientious objection law permits a physician to withdraw from providing a medically necessary intervention without securing appropriate continuity of care for the patient. Ultimately, conscientious objection is entirely compatible with a heath care practitioner’s duty to ensure that a patient receives the appropriate and medically necessary care that the patient requires while enabling the health care practitioner to adhere to his or her religious and moral principles.