14.1 Introduction: Are Bioethical Values “In Society” or “Of Society?”

When this volume is published, it will have been nearly seventy-five years since the Nuremberg “Doctors’ Trial” began, marking a formal end to an era where medicine—by commission and omission—sanctioned the murder of the “outsider.” Medicalized genocide, which was sifted and rarefied through centuries-old cultural antisemitism and prejudice, a dogmatic and purely materialist anthropology, and a medical and scientific establishment that prized efficiency and racial purity above all else (Proctor 1988; Lifton 1986; Burleigh 1994; Fernandes 2020), caused the death of at least 150,000–200,000 human persons between 1939 and 1945 (Foth 2014). But the trials also mark the beginning for the medical profession of a moral reckoning for the medical profession which must continue. These moral lessons of the Holocaust must be seen as dynamic, nimble, adaptable—guiding us at once to navigate the future of medical ethics, and also to reflect and recommit to medicine’s authentic foundations.

In this chapter, as the title suggests, I hope to explicate the rights and responsibilities of physicians to “uphold bioethical values in society”—not “of society.” This one-word difference is significant in that it suggests that (at least some of) the bioethical values of the physician must transcend the culture in which medicine finds itself. On the one hand, most of us take for granted that concepts such as the healing and restoration of the sick person, nonjudgment, inclusion, autonomy, and consent are fundamental concepts in bioethics. Yet, arguably every systematic abuse of these concepts in the past and present has been defended, in part, by a cultural, institutional, or professional acceptance of the abuse. The late Edmund Pellegrino noted that “What the Nazi doctors illustrate is that ethical teaching has to be sustained by the ethical values of the larger community. In Germany, this support system was weakened well before the Holocaust and the experiments at Auschwitz” (Pellegrino 1997, p. 307). In order to preserve the integrity and values of medicine, therefore, I will first affirm that physicians must ground what they do in the good of the human person, and unpack both the concept of “person” and “good.” Then, I will show that the hierarchical structure of medicine in which the physician finds herself can be at odds both with the values of persons and with the promotion of their good, as it was during the time of the Shoah. Next, I will argue that the current attacks on conscientious objection (CO) in bioethics are a threat to physicians promoting bioethical values in society. Finally, I claim that remembrance of the Holocaust and the role of medicine in its execution is a powerful tool for repentance, moral responsibility, and advocacy to protect patients in the future.

14.2 The Person and the Goods of Medicine: Definitions

14.2.1 The Person Matters

Arson which destroys a man’s home is an evil. The deliberate killing of a neighbor’s pet is also an evil. But for most (proponents of animal rights respectfully excepted) neither instance truly compares to the murder of a single human person. Why is this so? One can give rationalist, phenomenological, theological, or other, more “emotive” justification (intuition, experiential) for this belief, but few would dispute the prima facie value of the human person. The tragedy of the Holocaust is a tragedy not because 6 million Jews (en masse) were murdered, but because 6 million individual Jewish persons were murdered. Likewise, a farmer can restore a fallow field; an autobody shop workman can restore a terribly damaged car. Both are also service occupations. But the physician who heals the human person possesses a deeply profound respect which is different in degree. It is worthy of reflection that medicine draws this reverence not from what it can nakedly do to a person, but rather from the person to whom its healing power is directed.

14.2.2 Philosophical Anthropology: The Ethical Implications of Personalism and Materialism

Philosophical anthropology, which seeks to answer the question, “What is the nature and significance of the human person?” is a foundational subdiscipline of moral philosophy. As I have stated elsewhere, this “anthropological question” is essential to bioethical inquiry, and indeed, is at the heart of many disputes in bioethics (Fernandes 2002, 2017). Before one can truly decide whether this choice or that is good for the patient as a person, one must have at least reflected on the nature of personhood itself. While there are many competing anthropologies, a personalist anthropology, following philosophers such as Jacques Maritain, Gabriel Marcel, and Karol Wojtyla, and political leaders such as Mohandas/Mahatma Gandhi and Martin Luther King, Jr., suggests that it is not happiness, or utility, or choice, or even reason that ought to have the highest value in ethical decision-making. Rather, it is the transcendent human person herself. No other good in society can be elevated above the dignity of a single human person. Such a view comports both with reason and our phenomenological experience of the person. (Maritain 1946; Marcel 1963; Wojtyla 1969; Burrow 2006). This chapter is written from the perspective of a personalist anthropology; but certainly, those who disagree with the foundational premises could still agree with the conclusion by defining values through another transcendent philosophical route.

There is one major exception. The personalist view contrasts sharply with a materialist or positivist-empiricist view, in which there is no transcendent value to personhood:

Extrapolations of science’s materialist premises produces a bioethics measured by the good of the body or the species, for that is all there is. Mind, soul, emotion, spirit—all are simply epiphenomena of matter…There is no reality beyond what we can touch, see, feel, or smell. Suffering is pointless. When the machinery of the body is irreversibly damaged, death can, and should be chosen. (Pellegrino 2006, 255)

As Maritain wrote in the post-World War II period in his critique of National Socialism and Marxism—materialist views of personhood dangerously creates permissibility for individuals to be sacrificed for other “goods,” such as racial/nationalist health or the State, respectively. It was precisely because National Socialism did not recognize the value of the Jewish person that they were able to eclipse his or her good with other “goods.” Threats to bioethical values in society can occur when physicians and other medical leaders supplant the dignity of the highest good with other goods. Such goods need not even appear overtly nefarious, such as “love of country” racism. The security of one’s country or state (not necessarily a prima facie evil) can become dangerous when the value of the person is sacrificed for it—as in repeated cases of medical professionals participating in state-sanctioned torture (Miles 2020). Likewise, without a transcendent, inviolable value placed on human persons, even goods such as “scientific advancement” or “public health” can potentially override the rights and well-being of vulnerable individuals, as historical examples in Tuskegee (Gamble 1997) and sub-Saharan African HIV research (Brewster 2011) have shown us. To ensure against this, the human person is and ought to be the “central unit of value” in bioethical decisions.

14.2.3 Conscience and Moral Decision Making

It should be underscored that both the physician and the patient are invaluable human persons engaged in bioethical decision making. The doctor-patient relationship arises out of this covenant—where one person, i.e., the doctor, who has knowledge and technical skill, is at the service of another person, i.e., the patient, who is vulnerable and seeks help in the context of illness (Pellegrino 1994). The word “covenant” has an important, deliberate usage—to distinguish the physician–patient relationship from (for example a business) “contract,” which is more symmetrical. The covenantal relationship suggests a power imbalance borne out the nature of the relationship itself, while simultaneously conveying the trust of the more vulnerable party in that of the more powerful. Daniel P. Sulmasy puts it succinctly: “Physicians thus receive authority from patients to use the power of medical knowledge to exercise control over their patients’ bodies” (Sulmasy 2020, 304). When rights and responsibilities are weighed in these decisions, however, each person’s moral obligations arise first out of the fact that they are persons—it is not simply a matter of their roles as doctors or patients. Medicine is by definition, a “phenomenon of healing” as both a moral and an ontological process. It is a moral phenomenon in that physical healing is done for the good of the patient, a “good” that transcends mere biology in the experience; the physician and patient together must decide an ethically right course of action. Medicine is also ontological in that these morally laden decisions lead to the transformation of the being herself. When a physician acts for the patient’s good, he or she becomes, through the experience of that action, a different, better person. The tool that enables us to make decisions about right or wrong—indeed to recognize right from wrong—is conscience. As philosopher Kenneth Schmitz notes, conscience is a “bridge within consciousness” connecting the experience of freedom to the object presented through cognition. (Schmitz 1993).

Hence all humans require the free exercise of conscience in order to live out their moral lives as persons and to connect their freedom with rational truths extracted from experience. When Gisela Perl, a Jewish obstetrician, made the heart-wrenching decision to perform abortions, and even infanticide, on children born in Auschwitz in order to save their mothers, her conscience still operated even within the confines of a prison camp (Perl 1948). When Sonderkommando and physician Miklós Nyiszli aided the SS in prisoner selection in Auschwitz, his tortured memoirs and legacy reveal the conflict within his own conscience—and what might happen when coercion overlays its free exercise (Turda 2014; Nyiszli 1960). Conscience, therefore, is both a critical tool of moral reason and is crucial to the dignity of the person, for both physician and patient. It also represents a potential bulwark against external forces that holds men and women accountable to their moral responsibilities.

14.2.4 Rights, Responsibilities, and the Goods of Medicine

In ethics, if someone has an entitlement right to something, there is always a corollary duty attached. These rights and duties can be “negative,” such as free expression (a person has a right to speak and others have a duty not to interfere with that right); or, as in the case of the doctor-patient relationship, rights and responsibilities can be “positive” (a person has a right to seek healing and restoration, and the physician promises to actively work to help them achieve this right). Given the nature of the physician–patient relationship (covenantal, rather than contractual) and the power ceded to the doctor in that fiduciary bond borne out of illness, the protection of the vulnerable patient is the principal responsibility of the physician. But it also must be balanced against other equal (even temporally antecedent) rights and duties. For example, if society needs physicians to exercise integrity to care for their patients, it must also acknowledge the rights of physicians and health care professionals to exercise their moral conscience vis-à-vis the very same patients they have promised to help (Pellegrino 1994).

Thus, the bioethical values of the medical profession are sustained within the physician–patient relationship, with the doctor morally bound to act for the good of the patient. But what does this “good” actually mean? Edmund Pellegrino outlined four historic goods the physician should strive for: (a) the good as the patient sees it (autonomy); (b) the biomedical (physiologic) good; (c) the good for the person qua person (human flourishing); (d) the spiritual good of the person (Pellegrino 2001). While there has been a tendency to focus on (a) and (b) in medical education and practice, to the near-exclusion of all others, attention to all four goods are critical to the moral practice of medicine. It should be noted that “the good of society” or “the goods as perceived by medical societies,” while they might coincide with any of the four goods are not synonymous with them. Indeed, it is obvious that such other goods may also conflict with the physician’s responsibilities to pursue the good of his or her patient exclusively.

This is not an innocuous fact. Physicians have an ethical responsibility to uphold the rights of the vulnerable patients perhaps especially when threatened by the priorities of health systems, cultures, and political entities. As Daniel Sulmasy has convincingly elucidated, medicine is a power, a power with authority, and a power that seeks—by its nature—to control the human body. Power is also a profound temptation. Thus, Sulmasy highlights the significance of the motto of Viktor Brack, the administrator of the Akiton T4 euthanasia program that murdered hundreds of thousands of disabled persons: “The syringe belongs in the hands of the physician” (Sulmasy 2020, 299–306). This chilling phrase suggests that the Nazis knew full well of the innate power of medicine and that what they viewed as racial cleansing became the responsibility of the physician, and the physician alone. How did it come to this?

14.3 Professional Hierarchies: Then and Now

Elsewhere, Dr. DiAnn Ecret and I have described the role the “medical hierarchy” played in moral silence both in Nazi Germany and today (Fernandes and Ecret 2020). In this section, I will summarize key elements that highlight how such hierarchies in medical and clinical education can threaten the physician’s ability to do the right thing or exercise her conscience for the good of the patient. Holocaust scholars rightly have identified the hierarchical nature of the medical profession as a “risk factor for abuse of power” (Reis et al. 2019).

14.3.1 Hierarchy in Healthcare

Hierarchies in the training of physicians and nurses are embedded in a professional culture. Sometimes, such hierarchies promote the good of the patient; for example, when during a cardiac arrest a physician leader assigns roles and directs resuscitation. However, oftentimes hierarchies that exist due to inherent power imbalances within structural or practical interactions of the system can put persons at risk of real harm and ultimately affect patient outcomes (Gergerich et al. 2019; DiPalma 2004). The silencing of nurses in contemporary cases of costly medical error, for example (Brown 2013), faintly, but disturbingly, calls to mind the pressure of secrecy placed on nurses who worked in Nazi concentration camps by their “superiors.” Nurses working in the camps were forced to sign “nondisclosure agreements” so that, even if they felt an action was wrong in their conscience, they could tell no one (Benedict 2006).

The effect the hierarchy can have on moral conscience and the promotion of silence is profound, as medical education today normalizes humiliation, fear of retaliation, institutional tolerance and apathy among subordinates, thereby leading ultimately to “empathy erosion” (Crowe et al. 2017; Vidal et al. 2005; Neumann et al. 2011). Empathy erosion and medical hierarchies taken together can reinforce a negative impact on conscience or, what one researcher called “moral judgment competence” (Neumann et al. 2011). Simon Baron-Cohen takes this erosion of empathy to be the root of evil behavior, and makes the direct connection between a loss of empathy, the dulling of the human conscience, the “turning of people into objects,” and the ability to inflict the unimaginable cruelty of the Holocaust (Baron-Cohen 2017).

14.3.2 National Socialism and the Medical Hierarchy

Nazi physicians worked under a malignant hierarchical system that had its roots in three separate but overlapping loci: educational/cultural, moral, and legal (Fernandes and Ecret 2020). Medical education was impacted directly by a cultural education that taught that Jews, the disabled, and other “undesirables” were inferior to the Aryan person. Even textbooks reflected this extreme social bias (Bruns and Chelouche 2017). Hence, medical students learned—within the already rigid “strongman” culture of National Socialism where obedience to a professor’s authority was rewarded—that science itself was a biological dictator of how one should act. Given that the Nazi medical professional societies and the larger culture together advocated for a duty to rid the German “body” of “racial disease” (a metaphor they embraced as objectively true), the very notion of medical ethics (or for our purposes, “bioethical values”) became inseparable from the values of a corrupt and brutal society.

Hierarchical systems also affected the ability of health professionals to exercise their moral conscience. Andrew McKie has suggested that Nazi nurses were able to justify torture and murder because it was their “duty” to carry out typical nursing duties of executing orders with precision and confidentiality about their work (McKie 2004). Michael von Cranach, in a discussion of the murder of 200,000 psychiatric patients by Nazi doctors, notes that in a hierarchical structure, conscience and responsibility can be blunted when an individual transfers responsibilities of his or her duties to those who hold authority over them (von Cranach 2010).

Legal forces also shaped the actions of physicians under Nazi rule. The Nuremberg Laws of 1935 banned marriages and sexual activity between Jews and non-Jews, and they explicitly tied legal regulations and penalties, as well as the resultant social stigma, to the medical “science” being advocated by doctors, researchers, and scientists throughout academia and clinical practices. Doctors who contributed to the unjust laws could now fall back on the very same law—as so often happens today—as a justification for their actions, and as a compass for future actions. It is no surprise that many medical students I teach today, when asked what the ethical thing to do is, first ask what the law says they are permitted to do—as if the answers to both questions were the same.

Blind obedience to the law is a tempting but wayward moral strategy.

The banning of Jews from the practice of medicine, the decimation of their rightly-earned professorships and status in medical universities and hospitals, the prohibition of Jewish doctors from calling themselves “physicians” provided powerful incentives for non-Jewish medical professionals to actively cooperate and to not exercise their conscience when it was needed most (Proctor 1988, 131–176). The stigma of the minority physician within the Nazi medical hierarchy directly benefited the majority and kept them silent.

14.4 Conscience, Conscientious Objection (CO), and Ethical Diversity

In 12.2, we briefly discussed both the crucial importance of the person in bioethics, as well as the role of conscience as emanating from the person herself and forming the core of ethical life. In the moral lapses of physicians and health care professionals during the Third Reich, we can see how a sharp conscience—both to not cooperate with evil and, where possible, to speak up against patient harm or unethical science should have been indispensable. Yet, it is also clear that the hierarchical nature of medical culture negatively shaped consciences and even suppressed them. This is not to say that these physicians “had no choice.” All of them did. Alessandra Colaianni reminds us that:

…many studies have concluded that, ‘after almost 50 years of postwar proceedings, proof has not been provided in a single case that someone who refused to participate in killing operations was shot, incarcerated, or penalised in any way.’ Furthermore, a few doctors did refuse to participate and far from being killed for their actions, they were tolerated and even, in some cases, respected for their decisions. (Colaianni 2012, 435)

Thus, it is possible, even under extreme conditions, for physicians to fall back on the only thing which is truly theirs—the one thing that stands between a patient’s healing and their harm—their own conscience. However, there is a strong contemporary movement—perhaps among a “majority” of progressive academic bioethicists—that argues the right of physicians to conscientiously object to practices they deem unethical should now be rescinded. Typically, the “practices” in question revolve around abortion, euthanasia, contraception, gender transformation therapy, and other controversial procedures for which there is still much societal debate and rancor. Some bioethicists such as Julian Salvulescu and Udo Schuklenk claim for example that:

Doctors must put patients’ interests ahead of their own integrity…If this leads to feelings of guilty remorse or them dropping out of the profession, so be it…There is an oversupply of people wishing to be doctors. The place to debate issues of contraception, abortion and euthanasia is at the societal level, not the bedside, once these procedures are legal and a part of medical practice. (Salvulescu and Schuklenk 2017, 164).

Another line of attack on CO can be found in an argument by Ronit Stahl and Ezekiel Emmanuel, who maintain that since medical boards and regulatory agencies license physicians, these individuals ought to be willing to do those things permitted by the licensing boards (Stahl and Emmanuel 2017). Both arguments against CO call for the removal or exclusion (involuntarily or voluntarily, respectively) of physicians who hold moral viewpoints that are currently in the minority.

Many readers may sympathize with the argument against CO because they are supportive of abortion rights, euthanasia and the like, however taking this stance misses the essential nature of the debate. It is not about the topics being considered (i.e., whether or not one believes in abortion rights or medical aid in dying) but rather the right of the medical professional to utilize that most fundamental tool within the doctor-patient relationship: conscience itself. Contemporary attacks on CO are a dangerous assault on the freedom and autonomy of medical professionals. Overlaying these same contemporaneous arguments against CO to the physicians’ choices in Nazi Germany is instructive. Is it really true—then or now—that “doctors must put patients’ interests ahead of their own integrity?” One could easily ask, “Should any good (e.g., the state’s interest, the German volk) really be put in front of” a doctor’s own integrity? Such a view negates the four-pillared goods of the patient that the physician takes an oath to protect (autonomy, biomedical, human flourishing, and spiritual, see 11.2.4) and insists that only the patient’s own will matters.

Furthermore, arguments such as Stahl and Emmanuel’s willingly cede the power of individual conscience to other authorities (e.g., medical licensing bodies or professional groups), much like physicians did in the time of National Socialism. Physicians must be empowered to speak out against injustice, even if such injustices are permitted, tolerated, or even advanced by these bodies.

Yet, calls to exclude or ostracize physicians with minority ethical views (Salvulescu and Schuklenk 2017; Stahl and Emmanuel 2017; Fiala and Arthur 2014) should alarm us, irrespective of whether we agree or disagree with those views. The exclusion and oppression of Jewish physicians by medical societies, hospitals, and legal entities within the Third Reich had an incalculable moral, medical, and economic cost, since it malevolently excluded and oppressed some of the brightest, most accomplished, and ethically committed doctors. Likewise, as I wrote with Christopher M. Radlicz:

So, while opponents of conscientious objection define the problem as a simple one—get rid of the “problematic, religious physician” and the problem is solved—in fact doing so weakens the moral nature of the profession as a whole, by removing those very persons who are most committed to integrity (Radlicz and Fernandes 2019, 140–141).

Suppressing CO also hurts physicians as persons, if indeed conscience is crucial to human dignity and the moral life as I have asserted. To uphold bioethical values in society, physicians and those in the healing professions must be “fully armed” with the ethical tools available to every human being—precisely because they are at the service of the most vulnerable human beings.

A full accounting of the debate over CO is beyond the scope of this chapter. What I would like to impart is that, at face value, the ability to stand up and speak out against wrongs within the medical profession—should they arise—cannot be done without the ability of physicians of good will having the freedom to disagree, debate, and work to change how medicine is practiced. Had physicians done so with greater courage in Nazi Germany, the history of medicine and the world might have been different. While physicians with minority ethical views may remain just that—a minority—broadening ethical diversity by having these voices heard can be both a benefit to patients who agree with these views and choose these physicians, and to the profession as a whole, by acting as a persistent challenge to the prevailing mindset that reinforces the current moral standard or encourages change.

14.5 Remembrance as Both Atonement and Advocacy

I will end this chapter with a more personal reflection. I am a practicing Roman Catholic who married a religious Hindu. Both traditions—East and West—utilize hagiography for spiritual and moral inspiration. In these traditions, the lives of the Saints are read, reflected upon, and utilized as an example for how it is possible for real people to follow a transcendent path. Remembering suffering, courage, and martyrdom is not static. It points backwards and forwards simultaneously. It both deepens our appreciation for what was, and what ought to be.

I would like to suggest that those interested in the Holocaust and its moral impact in medicine adopt this approach to remembrance. Remembrance is vital to honor the victims and survivors of medical experimentation and genocide, to “re-personalize,” to restore forever the recognition of inherent dignity that was transiently but seriously eclipsed. A visitor to the US Holocaust Memorial Museum in Washington DC receives a “passport” as they begin to walk through, which briefly tells the story of a victim of the Shoah and includes the person’s picture. The resonance of this visual and historical remembrance cannot be understated. To be clear, I am not making the case for “canonization” or “veneration” of those who suffered at the hands of physicians in the Holocaust; instead, remembrance of this sort can be viewed as moral imperative of accountability that also teaches us, and in the process, changes us.

But for those like me also involved in clinical care, remembrance must also point forward. In medical education, we are fond of promoting the notion of building the clinical “life-long learner,” but much rarer is this concept applied to moral learning. The farther we move in history away from physician atrocities in the Holocaust, and as the last survivors pass into history, the more apt we are to forget them, or worse, to want to forget them. In one recent survey of adults under forty years old, 63% did not know that 6 million Jews perished in the Holocaust, and nearly half did not know the name of a single concentration camp (Ramgopal 2020). Elsewhere, I have called for universal, required Holocaust education in every medical school (Fernandes 2017). Reading and teaching the narratives of men and women who suffered at the hands of physicians can remind us of what our authentic responsibilities are. It will also remind us that power is not abstract and that a sharpened and free conscience can move us ever forward to what medicine ought to be.

Power cuts both ways. As we have seen, physicians can tragically and easily demean and destroy, and when this happens, it has an amplified effect precisely because of the societal reverence for the profession. And yet, the physician also has the ability to perform “outsized good” through humility, kindness, patience, integrity, and generosity of spirit. For this reason, the rights and responsibilities of physicians to uphold the bioethical values in society—rather than of society—should be reaffirmed with intention. For the values of the profession, just like the nature of the human person, is indeed transcendent. They are both aspirational and inspirational. My hope is that the education in medical ethics after the Holocaust will be our moral aid in truly advocating for the rights and dignity of patients, particularly those deemed vulnerable or even “disposable” in society today. Perpetual remembrance of our profession’s role in the Shoah is the atonement that we must make to preserve and advocate for all bioethical values in the future.