Abstract
This article attempts to motivate a reorientation of ethical analysis of conscientious objection (CO) by physicians. First, it presents an illustrative case from a hospital emergency department for context. Then, it criticizes the standard pro- and anti-CO arguments. It proposes that the fault in standard approaches is to focus on the ethics of the physician’s behavior, and a better way forward on this issue is to ask how the party against whom the physician exercises the CO ought to respond. It connects this question with recent trends in physician employment models, which suggest that CO may become a potential source of conflict in the future. The article then develops a relational account of CO that extends James Childress’ insights about the nature of CO in “Appeals to Conscience” (1979). This relational account characterizes CO as a two-place relation between conscientious objector and expectant party, in which the conscientious objector makes a request of the expectant party, which has implications that will be welcome and unwelcome for both the pro- and anti-CO camps. Finally, the paper applies this relational account of CO to the case when the physician is an employee. This application demonstrates that it is highly context dependent whether or not an employer should accede to the CO requests of physician–employees.
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Notes
This essay abbreviates both “conscientious objection” and “conscientious objector” as “CO”. The meaning of “CO” should be clear from the grammar of the sentence.
Cases like these can be revised endlessly to change the specialty of the physician and the activity to which has a CO. This case has been selected to provide an example of realistic example of a CO that might occur with some frequency. There are nearly 5300 emergency departments in the United States (Emergency Medical Network 2018), and the 2016 National Crime Victim Survey recorded over 394,000 incidents of rape or sexual assault (Morgan and Truman 2018). These numbers include male victims and geographical distribution of incidents is probably not uniform, but rough math suggests that the average ED can expect a victim of rape or sexual assault to present once every 5 days.
These criticisms of the pro- and anti-CO arguments are only outlines of rich criticisms; space constraints preclude a more substantial discussion than the one presented. I intend to address them in the future.
Financial incentives are likely to be driving this shift. Variability in Medicare reimbursement for procedures performed in hospitals and private practices makes acquiring private practices attractive to health systems, while Affordable Care Act (ACA) reforms like performance-based compensation may incentivize physicians to sell their practices.
HHS agreed to postpone the implementation of the rule until November 22, 2019 pending litigation (Associated Press 2019).
Future projects will apply the general account of CO to various examples of CO.
This article focuses on the relation between a physician and her employer even though other ethically interesting relations exist. The potential for applying this relational analysis to different binary relations may actually have some payoff for the patient-physician CO cases. It can form a basis for judging some (perhaps most) instances of patient-physician CO as unseemly. In these cases, patients’ agency appears to be limited to granting or withholding the physician’s request for an exemption. Nadia Sawicki demonstrated that federal and state laws have imposed significant constraints on private parties to impose penalties on physicians who deny them treatment for reasons of conscience (Sawicki 2018). When a physician invokes CO in her refusal comply with a patient’s expectations, her actions may be more characteristic of a power play than a moral exercise.
The philosophical literature also has a gap about the nature of CO. The philosophical literature reflects a focus on developing sophisticated and complex theories of what a conscience is. The CO literature cited above describe conscience in a number of ways—a source of moral knowledge; a psychological faculty for accessing moral knowledge; a source of moral motivation; or the contents of moral knowledge itself. The general account of CO that this essay will present should be capable of accommodating the various conceptions of conscience in the philosophical literature and which underlie the CO’s refusal to comply with an expectation.
This essay uses the term “expectation” to refer to the claim that a party has on the CO and to which she objects to help demonstrate that the general account of CO presented does not depend on interpreting the CO as having a duty and account for variations in the strength of an expectation. Others come to have expectations of us in several ways—the roles we occupy, the promises we make, the habits we reveal.
The legitimacy of the expectation that a person refuses to comply with because of her conscience is what marks the distinction between CO and civil disobedience. The person who refuses to comply with a law in order to stimulate reform of the law denies that the expectation expressed in the law is legitimate. Rev. Martin Luther King’s justification for breaking the law through direct action because the law is unjust is a famous defense of civil disobedience (King 1963). In “Civil disobedience, conscientious objection, and evasive non-compliance: a framework for the analysis and assessment of illegal actions in health care,” Childress makes a similar distinction when he says, “In civil disobedience… the agent is trying to effect or prevent social and political change, but in conscientious objection or refusal, the agent is bearing witness to his/her principles and perhaps seeking exemption from participation in evil, and he/she is not concerned to persuade or coerce others into actions to bring about or retard change…. I will use ‘civil disobedience’ to refer to… violations of law… designed to effect or prevent social, political, or legal change. I will use ‘conscientious objection’ to refer to… violations… intended primarily to witness to those [personal] principles or values” (Childress 1985, p. 68).
Acknowledging the moral weight of the expectation uncovers another feature of CO. Because the CO acknowledges that public justifications that apply to others support the expectation, the CO must recognize that the justification for her objection is personal, subjective and that others cannot be expected to share it. The personal justification need not be sui generis—others may share it; however, the CO accepts the justification is not universally compelling (If the CO does believe that the justification for refusing to comply with an expectation is universally compelling, then the CO ought to reconceive of her objection as civil disobedience). The expectant party may sympathize with the CO’s justification, and it may psychologically influence how he actually responds to the CO, but how he ought to respond is not dependent on the presence or absence of this sympathy.
Attempts at compelling a CO to comply with an expectation may also be imprudent because it is likely to be self-defeating and undermine achieving the goal (Childress 1979, p. 333).
Excusing the act involves the expectant party not making a negative judgment about the act or the CO’s character. To limit the culpability of the CO, the expectant party may diminish any penalties that he is entitled to levy on her.
The anti-CO arguments discussed above can be revised to argue it is unethical in some cases to make such a request, but such arguments would probably suffer from the same defects already described.
Hugh LaFollette makes a similar point that proponents of CO often inflate the strength of a CO claim by conflating different notions of what is at stake in CO (LaFollette 2017). LaFollette’s article is the only example found in the literature of explicitly asking how others should respond to a CO, though it focuses on asking when others should grant an exemption. However, LaFollette treats CO as a stronger claim than this essay does because he identified four criteria that a CO must satisfy to deserve an exemption. This suggests that a CO claim does dictate how others, who do not subscribe to the contents of the CO’s conscience, should behave.
The power to limit culpability seems dependent on the ability to impose a penalty on the CO that the expectant party has decided not to exempt from an expectation. Those without the ability to impose a penalty lack this power.
Some argue that the expectant party’s exercise of power should be contingent on the sincerity of the objection or reasonability of the CO’s grounds for being unwilling to comply (Hughes 2017; Meyers and Wood 2007). This consideration is irrelevant for the account of CO presented here because the focus on whether the CO is genuine elevates the strength of the CO from a request to an assertion of something like a right. In addition, the emphasis on sincerity or reasonability suggests the concern that people without a conscience-based objection to complying with an expectation will abuse CO to evade the expectation, culpability, or judgment. This concern prioritizes preventing abuses of CO over protecting legitimate instances of it. As such, it fails to reflect that the account of CO presented here accepts the value of conscience and acknowledges the harm to integrity that violations of conscience would cause. Judgments about the sincerity or genuineness or sincerity of a CO would be subjective and assessments of reasonability may be inaccurate. Because of this, it is possible that a genuine CO would be rejected; the analysis would not prioritize preventing the abuses. Moreover, a plan for curbing abuse may only be warranted if accepting CO prevents the satisfaction of a sufficiently important expectation. Even in cases in which a plan to curb abuse of CO is warranted, a sincerity or reasonability test for the CO may be unwise. The possibility of a mistake makes it possible, if not probable, that legitimate objections will be rejected and illegitimate ones validated, leading to unfair treatment. In “Appeals to Conscience” Childress suggests an exemption lottery for people who claim CO as one way to ensure fair treatment for each person with a CO (This criticism is independent of the account of CO in this essay). An important consequence of this account of CO is that the expectant party should treat a claim of conscientious with considered respect, and not dismiss it outright. The expectant party may investigate the refusal to comply to confirm that it is an instance of CO and not an act of civil disobedience. For example, the expectant party may ask the CO whether she thinks the expectation is itself legitimate or whether no one should comply with the expectation. In cases in which the party refusing to comply denies the legitimacy of the expectation, she is engaged in civil disobedience. It is beyond the scope of this essay to consider what constitutes an ethical response to acts of civil disobedience, but a willingness to face the penalties for civil disobedience is often part of the power of this form of non-compliance to reverse illegitimate expectations.
Space constraints preclude addressing the ethics of the expectant party’s exercise of its powers to limit culpability for or excuse the CO, but the author intends to address these issues in the future.
There is no doubt that many would consider this a compulsion to violate conscience.
The Supreme Court case Zubik versus Burwell is an example of an objection to such an automatic satisfaction of a state goal (Zubik v. Burwell 2016). The Affordable Care Act requires employer health insurance plans to provide contraception, but non-profits that object to contraception may file a form notifying the insurance company of their objection, and the insurer will then provide the contraception coverage. Zubik versus Burwell consolidated the complaints of serval litigants that this made them complicit in contraception, which violated their conscience.
In the future the state may have the option of automate military and combat operations through artificial intelligence and robots.
The factors on which the granting of an exemption depend are contingent, and because of this, exemptions are sensitive to the actual obtaining of those factors. That means that an exemption is particular to the circumstances at hand, and those circumstance may warrant a reappraisal of the exemption. The state may grant an exemption now because it does have others on which it may rely to meet its goal or an automatic means, but if in the future these contingencies are exhausted, the state may revoke its exemption.
CO in medicine has an extra layer of complexity because some instances of CO involve a refusal to comply with an expectation for referral for treatment. The circumstances in which this paper assumes CO occurs is one in which the expectant party is an employer with other employees besides the CO. In cases where a physician employee refuses to comply with an expectation of referral, it is likely that another employee can be relied on to make the referral. Practically this implies that COs to referral for treatment are more likely to be accommodated than COs to the treatment itself, which is paradoxical because people would be expected to judge direct participation (providing the treatment) as more threatening to integrity than indirect participation (referral).
A New York Police Department officer may be assigned temporarily to security detail for a high-profile event even if his employment role within the police department is in information technology, but it would be inappropriate to assign him to Special Weapons and Tactics (SWAT) if there was a shortage of officers in that division. It is inappropriate because the latter position requires special training, while the former involves training all cadets receive.
A natural disaster or mass casualty event may necessitate the emergency reassignment of employees from other services. This is an example when the hospital is justified in expecting a physician-employee to perform a reasonable, unanticipated task.
It is possible that a quirk of staff scheduling causes the ED to be staffed entirely with physicians that object to emergency contraception. In such a case, the hospital must determine whether to treat all of the physician as refusing to comply with an expectation or just the physician who initially objected. It is beyond the scope of this article to address this potential diffusion of responsibility.
Fully responding to this objection would require exploring subtle questions about the nature of conscience and the entities that may possess one. Space constraints preclude this essay from more substantive engagement with these issues, but those pressing the question face the challenge of answering those questions in ways that would sustain it.
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Cummins, P.J. Conscientious Objection and Physician–Employees. HEC Forum 33, 247–268 (2021). https://doi.org/10.1007/s10730-019-09390-8
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DOI: https://doi.org/10.1007/s10730-019-09390-8