Those arguing that conscientious objection in medicine should be declared unethical by professional societies face the following challenge: conscientious objection can function as an important reforming mechanism when it involves health care workers refusing to participate in certain medical interventions deemed standard of care and legally sanctioned but which undermine patients’ rights. In such cases, the argument goes, far from being unethical, conscientious objection may actually be a professional duty. I examine this sort of challenge and ultimately argue that these acts of conscience done in the interest of reforming professional norms or medical regulations are best understood as episodes of civil disobedience rather than episodes of conscientious objection. In contrast to the private, exempting nature of conscientious objection, civil disobedience is a public breach of a norm or law undertaken with the aim of bringing about a change in governmental policies or professional standards. Consequently, clinicians may have a duty to engage in civil disobedience even while professional societies are right to declare limitations on the ethical appropriateness of conscientious objection.
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This is a problem even without establishing that patients have a positive right to medical services [that is, a right to receive any medically appropriate service from the clinician of one’s choice]. Insofar as our society allows for access to healthcare to be determined by one’s financial situation or medical savvy, we are reinforcing an objectionable form of social hierarchy. Even in the absence of a positive right to health care, allowing for inequity in access is arguably unjust since it expresses unequal respect and concern for all citizens. On this point see (Anderson 1999).
It should be noted that Savulescu claims that insofar physicians are working in private practice, they “have more liberty to offer the service of their choice, based on their values” just as long as patients are fully informed of the alternatives they can receive elsewhere (2006, p. 296). This distinction between private and public, presumably works in a system where most people access their healthcare publicly and so only seek out private medicine electively. It is unclear whether his lenience toward private practice would remain in a healthcare system like the US.
A notable exception among defenders is Mark Wicclair, who argues for a “compromise approach” in which professional obligations justify several constraints on the exercise of conscience by clinicians, as long as the health care professionals do not violate these constraints they can exercise their conscience while fulfilling their core professional obligations. On Wicclair’s account, the Incompatibility Thesis is understood as the analogue to “Conscience Absolutism”; both of which are polar extreme positions that are not well founded in ethical discourse or professional practice. I disagree that the incompatibility thesis is so extreme as I go onto argue. This disagreement may lie in the fact that Wicclair understands the incompatibility thesis as entailing the stronger Unfit for Profession Thesis whereas I think the two theses can be pulled apart. See, in particular, Wicclair ( 2011, p. 91).
I am grateful to Abraham Nussbaum for our personal discussion about some of the details of this case in a panel at the Ohio State University on February 26, 2018.
Whether HB 854 is indeed a legitimately developed and constitutional piece of legislation is a live question. For the purposes of this paper, let us assume that it is an unjust law, created by legitimate means.
In this way, FD differs from one of Wicclair’s interesting lines of defense of Conscientious Objection (see Wicclair 2011, especially p. 50).
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Howard, D. Civil Disobedience, Not Merely Conscientious Objection, In Medicine. HEC Forum (2020). https://doi.org/10.1007/s10730-020-09417-5