Abstract
The literature on conscientious objection in medicine presents two key problems that remain unresolved: (a) Which conscientious objections in medicine are justified, if it is not feasible for individual medical practitioners to conclusively demonstrate the genuineness or reasonableness of their objections (“the justification problem”)? (b) How does one respect both medical practitioners’ claims of conscience and patients’ interests, without leaving practitioners complicit in perceived or actual wrongdoing (“the complicity problem”)? My aim in this paper is to offer a new framework for conscientious objections in medicine, which, by bringing medical professionals’ conscientious objection into the public realm, solves the justification and complicity problems. In particular, I will argue that: (a) an “Uber Conscientious Objection in Medicine Committee” (“UCOM Committee”)—which includes representatives from the medical community and from other professions, as well as from various religions and from the patient population—should assess various well-known conscientious objections in medicine in terms of public reason and decide which conscientious objections should be permitted, without hearing out individual conscientious objectors; (b) medical practitioners should advertise their (UCOM Committee preapproved) conscientious objections, ahead of time, in an online database that would be easily accessible to the public, without being required, in most cases, to refer patients to non-objecting practitioners.
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Notes
In previous work on conscientious objection in medicine, I have argued that (a) conscience can express true normative (and, more specifically, moral) claims (Ben-Moshe 2019c), and (b) the claims in question can be about medical norms rather than about general moral norms (Ben-Moshe 2019a). My aim in the current paper is not to retract my previous views about conscientious objection, but rather to offer a different account, based in part on the authority of public reason, for readers who remain unconvinced about the association between conscience and truth.
One can use integrity of the objector and truth of the objection in order to assess which objections are justified. However, these criteria also explain why conscientious objection in medicine is justified in the first place: safe-guarding people’s integrity, promoting truth, and so on. Genuineness and reasonableness (discussed above), on the other hand, are only used to assess which objections are justified, which is how they are presented in the literature.
For a defense of a hybrid view, see Kantymir and McLeod (2014).
I discuss this example in Ben-Moshe (2019c, p. 409).
The conditional in this claim is important. If we focus on the objective conception of complicity, then there will be many instances in which we will not have a clear answer to the question of whether the action objected to is, in fact, morally impermissible. However, if it turns out that the action is morally impermissible, the practitioner who objects to performing the action, but aids the patient in performing it, would have been complicit in actual wrongdoing.
Even Brock (2008, p. 198) is well aware that a significant degree of complicity will remain if objecting medical practitioners are required to refer patients to other practitioners; he therefore insists, however, that if a medical practitioner is not willing to adhere to the proposed compromise, then they should leave their professional role.
If the committee were comprised only of representatives from the medical community, we would risk a version of what John Arras (2001, pp. 653–656) calls “historical professionalism,” namely, the position that physicians determine, through agreement, the norms of medicine in a historically evolving manner. As Arras points out, the mere fact that members of a given group have agreed upon certain norms is not sufficient to justify the norms to outsiders, especially when the behavior of the group in question impinges on the interests of those outside the group.
By attributing moral authority to the UCOM Committee, I am implying that the verdicts of the committee will be authoritative over existing laws in one or both of the following ways: (a) existing laws may need to be modified if they are inconsistent with the verdicts of the UCOM Committee; (b) the verdicts of the UCOM Committee would justify exceptions, under certain circumstances, to existing laws without necessarily altering them.
Knowledge of the relevant facts and impartiality are familiar from ideal observer theory and modest ideal observer theory (see Firth 1952; Smith 1976, respectively), but they can easily be incorporated into a constructivist procedure. Reasonableness is familiar from Rawls’s (1980) Kantian brand of constructivism.
Both of these features are taken from my constructivist account of the internal morality of medicine (see Ben-Moshe 2019b, p. 4458).
As Rawls (2005a, p. 129) puts it elsewhere, “once we accept the fact that reasonable pluralism is a permanent condition of public culture under free institutions, the idea of the reasonable is more suitable as part of the basis of public justification for a constitutional regime than the idea of moral truth.”
Many of the points in this paragraph are taken from my constructivist account of the internal morality of medicine (see Ben-Moshe 2019b, pp. 4459–4461).
Rawls (2005a, p. 215) entertains the idea of applying public reason to “all questions in regard to which citizens exercise their final and coercive political power over one another.” He does not object to doing so, noting that his aim is “to consider first the strongest case where the political questions concern the most fundamental matters. […] Should [the limits of public reason] hold here, we can then proceed to other cases.” Indeed, he notes that it is “usually highly desirable to settle political questions by invoking the values of public reason”.
Different bioethics committees have come up with different guidelines: Clinton’s bioethics committee affirmed liberal agenda items that Bush’s committee did not. I am indebted to an anonymous referee for this example.
For other ways of facilitating agreement and consensus in bioethics committees, see, for example, Moreno (1994).
Rawls (2005b, p. 480) notes that some may reject a legitimate decision made in light of public reason, for example, Roman Catholics may reject a decision to grant a right to abortion. They may even argue in terms of public reason, but fail to win a majority. While they need not exercise the right to abortion and they may even continue, in line with public reason, to argue against the right to abortion, they should recognize the right as belonging to a legitimate law enacted in accordance with legitimate political institutions and public reason.
Card (2017, p. 225) does briefly note that “as part of establishing CO status in medicine, we should create an online database accessible to patients so that they can be aware of any successful petitions for CO status by their physician and therefore avoid a refusal.” However, it is clear that Card does not use this idea to solve the complicity problem, for he continues by saying that, “given the public knowledge of such CO status, this provides objecting practitioners with the means to quickly ensure they are referring their patient to a willing provider.” Referral would, as argued above, leave objecting practitioners complicit in perceived or even in actual wrongdoing.
For an excellent discussion regarding the desirable ratio of conscientious objectors to non-conscientious objectors in a hospital or in a given geographic area, see Minerva (2017, pp. 116–118).
There is an additional worry that the law often makes it difficult to practice medicine, for example, at a Roman Catholic hospital with Roman Catholic religious commitments. Indeed, there are a number of lawsuits pending in the United States trying to force Roman Catholic hospitals to perform abortions, sterilizations, and so on. I will not be discussing the hostility of the law to such matters, since my argument pertains not to what is the case, but to what ought to be the case. Thus, the verdicts of the UCOM Committee might render current laws problematic, so that they may need to be revised accordingly. I am grateful to an anonymous referee for bringing this issue to my attention.
One could make a similar case for religious considerations, but I will not pursue that possibility here.
I have previously made this last point in connection with conscientious objections that are made from the standpoint of Adam Smith’s impartial spectator (see Ben-Moshe 2019c, p. 409).
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Acknowledgements
I would like to thank audiences at the APA Pacific Division Meeting (2019), especially Leslie Francis, as well as at the ASBH Annual Meeting (2018). I am also grateful to my colleagues—Derrick Baker, Ben Bryan, Ben Miller, David Sussman, and Erik Youngs—for their comments on the penultimate draft of this paper. Finally, I would like to thank Bryan Pilkington for kindly inviting me to submit this paper to the special edition on conscientious objection at HEC Forum, as well as two anonymous referees for the journal, whose comments were invaluable in improving the paper.
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Ben-Moshe, N. Conscientious Objection in Medicine: Making it Public. HEC Forum 33, 269–289 (2021). https://doi.org/10.1007/s10730-020-09401-z
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DOI: https://doi.org/10.1007/s10730-020-09401-z