Abstract
In this paper, I consider the role of conscience in medical practice. If the conscientious practice of individual practitioners cannot be defended or is incoherent or unreasonable on its own merits, then there is little reason to support conscience protection and to argue about its place in the current medical landscape. If this is the case, conscience protection should be abandoned. To the contrary, I argue that conscience protection should not be abandoned. My argument takes the form of an analysis of an essential feature of the conscience dissenter’s argument, the role of disagreement within “the medical profession.” Conscience dissenters make certain assumptions within their arguments about the profession, disagreements within the professions, and how such disagreement should be adjudicated. If it is the case that these assumptions are accurate reflections of the current medical landscape, then the advocate of conscience protection has one less leg to stand on. I aim to show that this is not the case and that the assumptions of the conscience dissenter are not only mistaken but are mistakes of significant magnitude, so significant as to raise serious questions about the merit of their position. If the argument in this paper is sound, then, at the very least, the conversation over conscience protection in medicine, in particular, and health care, in general, must continue.
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Notes
This is clearly a signification concern for the authors, who note at the outset, “Physicians can refuse to perform abortions or in vitro fertilization. Nurses can refuse to aid in end-of-life care. Pharmacists can refuse to fill prescriptions for contraception. More recently, state legislation has enabled counselors and therapists to refuse to treat lesbian, gay, bisexual, and transgender (LGBT) patients” (Stahl and Emmanuel 2017, p. 1380).
Unless otherwise specified, the conscience dissenter’s view which I focus most closely on is that of Stahl and Emanuel.
Stahl and Emanuel (2017), p. 1380. The argument that supports this objection is that military service, given that tasks involved in such service are deemed personally objectionable by a possible member of the military, can be avoided at a cost. For the purposes of this paper, I grant the conscience dissenter’s claim of disanalogy between healthcare practice and military service and what follows from their analysis. This is for two reasons. First, if it is the case that there is another justification for the protection of a practitioner’s conscience, then the fact that military service and medical practice may not be analogous is not a decisive argument against conscience protection. That is, that even if they were correct on all these matters, it does not follow that conscience protection should be abandoned. Rather, if they are correct, it illustrates that there is a difference between military service and health care practice—nothing more. The conscience dissenter argument would only be decisive if there were no other bases for conscience protection. I remain appreciative of the historical emphasis of Stahl and Emanuel’s work, as we sometimes forget the historical context in which moral claims are offered and fail to attend to relevant factors, yet context is neither the entire story nor does it offer us sufficient reason to abandon conscience protection. Second, it is not clear to me that framing the aims of a physician’s or other healthcare practitioner’s conscientious practice as conscientious objection is the best framing.
Stahl and Emanuel (2017, p. 1382). It is worth noting that not all conscience dissenters argue that the profession is the proper determiner of individual professionals obligations, as Stahl and Emanuel do; others, such as Julian Savulescu, argue that such determinations are the responsibility of the government or the state, for example.
For a history of the medical profession, see Starr’s the Social Transformation of American Medicine (1982). As for the need for oversight, I have in mind classic cases in medical ethics, such as the research ethics violations associated with the Tuskegee Syphilis Trials and the Willowbrook State School.
The interesting cases are not about those who engage directly with patients on matters of care, but rather with respect to administrators, and local and national institutions.
There are, of course, more robust accounts of professions, e.g., Buchanan (2009).
This is not to say that there are no other considerations that a medical professional can reasonably consider. Professionals might consider the need for them to earn a living in support of themselves and their families, their professional reputation, et cetera. Rather to focus on the well-being of the patient is to claim that the orientation of medical practice toward the well-being of the patient, that is the object of such a practitioner’s work.
Stahl and Emanuel (2017, p. 1382). Though these situations involve elements of “classic” cases in medical ethics, I will argue below that they misrepresent relevant features of cases of conscience protection.
This equivocation exists in the work of Stahl and Emanuel, for example. Though they make broad claims about the profession of medicine, they attempt to support such claims by discussing the codes of and guidance given by professional societies and associations, charging the AMA as “internally inconsistent regarding conscientious objection” (p. 1383), the American Pharmacists Association as “ambivalent” (p. 1384), and then proceeding to discuss the American College of Obstetricians and Gynecologists and the American Psychological Association, which are—again—professional societies and associations. They move directly from these examples to discussions of health care providers and “the profession” (p. 1384). Professional societies or associations are not identical to “the profession” and surely an individual society—or even a cluster of them—is not identical to so broad a “profession” as health care provider.
I have in mind here healthcare practices and institutions in the United States. I follow Stahl and Emmanuel, who, given the examples they address, are similarly focused. Considerations of conscience and healthcare in other countries might differ, especially in countries where physicians are members of a guild, for example, as opposed to physicians in the US who might be part of one (or a few) of many professional societies or associations.
It is worth noting that less than 25% of practicing physician belong to the AMA (according to Business Insider, https://www.businessinsider.com/doctors-american-medical-association-2016-12) and that there are a host of other professional societies that, though they may have less name recognition, might have a better claim, e.g., the American Osteopathic Association, Christian Medical and Dental Association, the Catholic Medical Association, the American College of Obstetricians and Gynecologists, the Heart Rhythm Society, the American Academy of Neurology, etc. My point here is not to argue for any of these in particular, but to offer evidence that discussion of “the profession” do not clearly point to one association and to note that these associations differ, and this is not even to mention possible disagreements between legal claims and the claims of professional associations.
This might suggest that the Heart Rhythm Society would be a better candidate.
This suggests that the American Nursing Association’s membership should be included.
Notice that a proliferation of units, in this case professional societies, does not solve the problem, as then adjudication must occur between these societies with respect to the care for a particular patient.
Even if one were to accept—and accept completely—the Rawlsian account here—much needs to be discussed about who it is who engages in reflective equilibrium and how to best understand how to apply what Rawls argues to the particular cases of disputes among health professionals.
The conscience dissenter position I am focusing on here places the location for the adjudication of disagreement within the profession. However, it should be noted that a different location would not avoid the concern, but merely move the conversation over disagreement to a different location.
Given their focus on the well-being of patients, one might expect the conscience dissenter to construct a response illustrating that she takes seriously the freedom, in the Rawlsian sense, of patients. However, this is not what is needed. The challenge for the conscience dissenter is how to make such a case for healthcare practitioners because she has rooted the adjudication of disagreement within the profession (or professional association) and so it is the members of that profession who on the very description offered are the ones engaging in the reflective equilibrium process. Patients, though the focus of the healthcare professions’ practices, are not engaging in the reflective equilibrium process to alleviate disagreement within the profession (or among professions).
Consider for examples, the work of Edmund Pelligrino, as well as that of Farr Curlin, and Daniel Callahan on the nature of medicine as a profession.
I do not have space to fully develop this line of argumentation here, but I do so elsewhere (Pilkington 2019).
For my purposes here, we can think of specific personal religious and philosophical views as comprehensive doctrines. We might contrast reasons or rationales rooted in these doctrines, with public, or more broadly applicable, reasons or rationales. Consider examples of each, respectively, in support of a claim to force the closure of businesses on Sunday: (a) Businesses ought to be closed on the Sabbath because the Bible specifies that work should not be done on the Lord’s day; (b) Research in medical science suggests that days away from work are part of a healthy lifestyle and so business should be closed to citizens one day a week, and Sunday is a day of the week. For a full discussion of comprehensive doctrines and other relevant Rawlsian conceptual resources, see Rawls (2003).
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Pilkington, B.C. Conscience Dissenters and Disagreement: Professions are Only as Good as Their Practitioners. HEC Forum 33, 233–245 (2021). https://doi.org/10.1007/s10730-020-09395-8
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DOI: https://doi.org/10.1007/s10730-020-09395-8