Christian Fiala, Joyce H. Arthur
EXCERPTS
Abstract
A widespread assumption has taken hold in the field of medicine that we
must allow health care professionals the right to refuse treatment under the
guise of ‘conscientious objection’ (CO), in particular for women seeking
abortions. At the same time, it is widely recognized that the refusal to treat
creates harm and barriers for patients receiving reproductive health care. In
response, many recommendations have been put forward as solutions to limit those
harms. Further, some researchers make a distinction between true CO and
‘obstructionist CO’, based on the motivations or actions of various objectors.
This paper argues that ‘CO’ in reproductive health care should not be
considered a right, but an unethical refusal to treat. Supporters of CO have no
real defence of their stance, other than the mistaken assumption that CO in
reproductive health care is the same as CO in the military, when the two have
nothing in common (for example, objecting doctors are rarely disciplined, while
the patient pays the price). Refusals to treat are based on non-verifiable
personal beliefs, usually religious beliefs, but introducing religion into
medicine undermines best practices that depend on scientific evidence and
medical ethics. CO therefore represents an abandonment of professional
obligations to patients. Countries should strive to reduce the number of
objectors in reproductive health care as much as possible until CO can feasibly
be prohibited. Several Scandinavian countries already have a successful ban on
CO.
---As demonstrated in a previous paper by the authors, so-called
‘conscientious objection’ (CO) as used in reproductive health care is a term
falsely co-opted from military CO and has nothing in common with it. For
example, soldiers are drafted into compulsory service, are relatively powerless,
and accept punishment or alternate service in exchange for exercising their CO;
while doctors choose their profession, enjoy a position of power and authority,
and rarely face discipline for exercising CO. Therefore, CO should more
correctly be called ‘dishonourable disobedience’ because it is a refusal to
treat based on personal and non-verifiable beliefs, which is inappropriate and
harmful in reproductive health care. It represents an abuse of medical ethics
and professional obligations to patients.
Our position is not peculiar or uncommon − many others argue persuasively against the practice of CO not only in reproductive health care, but health care in general.
Is refusing patients a ‘right’?
Remarkably, pro-choice researchers and ethicists who support CO in
reproductive health care rarely try to defend the practice beyond a simple
assertion that individual conscience is an important right. Certainly this is
true for everybody in general, but in the field of reproductive health care,
there has been little or no recognition of how CO unjustly privileges doctors’
conscience over patients’ conscience, not to mention their life and health. The
granting of CO also gives legitimacy to the religiously-based assumption that
abortion is wrong − however, providing safe abortion is an ethical practice that
has saved the lives and protected the rights of millions of women. Moreover,
doctors have obligations to their patients and the public. They occupy a
privileged position of trust and responsibility in our society, and profit from
a monopoly on the practice of medicine.
--But why should society support CO at all in the 21st century? We now
understand the necessity and value of access to safe and legal abortion for
women, which means supporting CO just cedes ground to those who defend archaic
social mores and traditional roles of women. As such, CO weakens the causes of
reproductive rights and women’s equality.
The problem with assuming CO as a right is exemplified by an article that
objects to the ‘Improper Use of Conscientious Objection in Bogotá, Colombia’, by
Vélez and Urbano. This article in turn is a response to ‘The Fetus Is My
Patient, Too’, a study by Fink et al. about attitudes to abortion provision and
referral by objecting doctors in Bogotá Colombia.
Vélez and Urbano’s main criticism of the Fink et al. study is its division of
objectors into ‘extreme, moderate, and partial’. They claim that only some of
these objectors are true objectors from conscience, while others are obstructing
the service and disobeying the law, which is not conscientious objection and
should not be called that. This misses the point of Fink et al.’s study, which
was simply to categorize objectors’ perspectives with the aim of finding
possible interventions to reduce CO as a barrier to care. Instead, Vélez and
Urbano draw a dividing line between the supposed true ethical use of CO and the
false harmful kind.
In reality, there is only one kind of CO in reproductive health care: the
refusal to provide a legal treatment that the patient requests and needs, based
on the provider’s subjective, personal belief that the treatment is immoral.
Whether that belief is sincere or pretended, extreme or moderate, is irrelevant
because CO is harmful in any case. It denies patients’ right to health care and
moral autonomy, and has negative consequences for them. The extent of harm of CO
is on a continuum, and is often much worse than a short delay − women needing
abortions have been left to suffer serious injury or even die. But even if the
harm seems minimal − i.e., the objector refers appropriately and the patient
receives services promptly, refusals are still inherently wrong and harmful. The
provider is deliberately refusing to do part of their job for personal reasons,
thereby abandoning their fiduciary duty to patients, while still expecting
payment and no negative consequences. It also discriminates based on gender and
pregnancy because reproductive health care is largely provided to women.
Finally, refusals demean a woman by undermining her dignity and autonomy, and
sending a negative message that stigmatizes her and the health care she needs.
A telling point about the true nature and intention of CO was made in 2016 by
Harris et al., who support the right to exercise CO. They state that it is ‘the
only legal way to refuse to provide abortions that are permitted by law.’ In
effect, the state is allowing objectors to personally boycott
democratically-decided laws, usually for religious reasons, without having to
pay any price for it. But why should doctors be given a privileged exemption
from otherwise valid laws, when similar actions by other workers who serve the
public would be treated as illegal or discriminatory and result in punishment
for the workers?
The largely religious and non-verifiable basis of CO makes the laws and policies that try to limit its exercise impossible to enforce. The inability to control CO has especially negative consequences in countries with a lot of objectors. In such countries (Italy and South Africa are just two of many examples), abuse of CO is rampant, with many objectors refusing to stay within the limits defined by law. This points to another fundamental contradiction of ‘CO’: it is impossible to reconcile faith-based medicine with evidence-based medicine. If we allow the former to exist, faith wins by default because we cannot argue rationally against it or control it.
Can we identify ‘true
CO’?
Vélez and Urbano imply that CO for reasons of true conscience can somehow be
identified and protected, as opposed to obstructionist CO. But they fail to
explain or give examples of how to do this.
Anti-choice HCPs might claim they are motivated by ‘respect for unborn life’
(for example). But that raises the issue of how we cannot rely on people’s
stated justifications since one’s personal or religious beliefs cannot be
verified or falsified on a rational basis, including how genuinely such beliefs
are held. It is also inappropriate and impossible for courts or governments to
‘decide’ whether someone's religious beliefs are valid or sincere. That is
because there is no evidence − we can only trust a person’s word, which is not
good enough. Allowing CO is a bad idea is because it leaves us unable to
challenge people’s justifications − we have to accept them at face value
regardless of the harms they may cause to patients.
An article by two ethicists (Savulescu and Schuklenk) also addresses this aspect:
…individual moral judgments about the rights and wrongs of particular medical practices are by necessity partly arbitrary. They are arbitrary in the sense that their moral basis cannot be conclusively evaluated for soundness (an impossibility when it comes to religious convictions, for instance.) In some of these cases, there can be reasonable disagreement about whether the practice is right or wrong. As a result of this, pretty much any conscience view that is the result of some deliberation and is claimed to be held deeply and sincerely ‘counts’.
Since it is impossible to determine
whether an objector’s motivations are genuine, or even to question them, there
is no rational evidence-based argument for allowing CO. Laws and policies trying
to control and limit CO cannot be effectively applied because consciences are
private, subjective things that differ for each individual. It is simply not
possible to have any criteria for CO, let alone enforce them. Anyone can cite CO
and lie or exaggerate. Or be sincere. Who knows? The only way we can judge is in
rare evidence-based situations, such as when doctors in Italy and Poland are
caught exercising ‘CO’ in public hospitals while doing abortions for profit in
private clinics.
The debate about where to draw the line between ‘true and
false’ CO is an illogical attempt to distinguish between true and false
religious beliefs, similar to counting how many angels can dance on the head of
a pin. It is unresolvable. When we allow religious beliefs to dictate medical
decisions, we fail patients and we fail society, because we have surrendered
evidence-based medicine to irrationality.
Does CO have any place at all
in health care?
HCPs should conscientiously refuse treatment based on the principle of
‘beneficence’ or ‘non-maleficence’ to ensure the patient is helped or at least
not harmed. For example, this may become necessary if a patient requests a risky
experimental treatment, or a mentally disturbed patient wants an unnecessary
procedure such as an amputation.
However, such refusals should be rightly
seen as an obligation of doctors to their patients and to their professional
ethics. They are not due to an individual doctor’s subjective personal or
religious beliefs, and therefore do not fit the definition of conscientious
objection.
Likewise, HCPs should refuse to perform illegal or quasi-legal activities
that are not requested by the patient and may injure people and violate their
rights, such as torture or genital mutilation of children. Such practices are
not legitimate medical treatments and do not have patient consent, which means
that HCPs have a professional ethical obligation to refuse to provide them.
Since these refusals are not grounded on the individual personal beliefs of HCPs,
they do not qualify as CO.
Therefore, personal conscientious objection to a treatment that a patient requests has no valid place in health care. Treatment decisions by HCPs must be patient-directed, not self-directed, and must be based on evidence, medical ethics, and professional obligations. If the treatment is legal, within the HCP’s qualifications, requested by a mentally healthy patient, and primarily beneficial (which abortion is), there is simply no excuse to refuse.
Can
we rescue CO while protecting patients’ right?
Over the last few years, many researchers and ethicists have tried to develop
recommendations aimed at reducing the harms and barriers caused by CO in
reproductive health care. These include: Harris et al., Lertxundi et al.,
Minerva, Cabal et al., Downie et al., Zampas and Andión-Ibañez, Cavallo and
Michel, and contributors to a medical journal’s supplementary issue on CO.
In the example from Harris et al., the authors claim that it is not CO itself
that is the inherent problem. Rather, they argue that the political, economic,
and social contexts in which objection occurs are responsible for the inadequacy
of CO laws and regulations, their poor implementation and enforcement, the
obstructionism of many objectors, and the stigma against abortion. The premise
is: If we can address these external problems, then it would be possible to
protect providers’ claimed right to refuse to treat patients and patients’ right
to health care at the same time.
Those two goals are inherently contradictory on their face, and it remains
unclear whether their proponents realize this on some level. The pattern that
emerges from all these recommendations is a clear aim to curtail and control CO
as much as possible − as if it is a bad thing, and not a right. Some fixes
require extraordinary or long-term social/institutional changes such as
significant reduction of abortion stigma, extensive awareness campaigns, or the
decriminalization of abortion. Others are attempts to reduce the number of
objectors or the extent of their CO, such as limiting its exercise to
individuals involved in direct care, implementing monitoring and compliance
measures, imposing disincentives on objectors, expanding abortion provision to
GPs and midlevel HCPs, educating objectors on their duties, and offering values
clarification workshops.
Common recommendations such as the requirements to refer and to provide
emergency abortions, limit CO to the extent that conscience is no longer
sufficiently protected or hardly at all, from the perspective of many objectors
at least. Indeed, how can someone’s true conscience be ‘limited’? Who decides
and on what basis? We are back to the impossible task of judging the integrity
and depth of someone else’s religious beliefs. Besides, asking doctors to
compromise their beliefs is often futile. Large numbers of anti-choice doctors
will never obey a requirement to refer, and some will let a woman die rather
than perform a life-saving abortion required by law.
These attempts to mitigate the situation are a tacit admission that CO itself
is fundamentally unworkable, ethically wrong, dangerous for women, and
incompatible with reproductive health care and human rights. Many are also based
on wishful thinking, a hopeful pipe dream about how things should be. The
inherent contradiction becomes apparent by the fact that no-one can cite a
single example of ‘successful’ CO practice anywhere in the world − unless the
measure of success is reducing the number of objectors to a tiny number, such as
in Norway. Indeed, only one approach has proved successful in eliminating the
negative consequences of CO − prohibiting it.
Sweden, Finland, and Iceland do not allow doctors to exercise CO for abortion
in public hospitals. Denmark and Norway require every hospital to provide
abortions without delay, although individual doctors retain a right to CO.
Scandinavian countries are further ahead in gender equality compared to other
countries, and since CO is largely a reflection of sexism, Nordic nations likely
had a low number of objectors to begin with and were able to largely ban CO.
Therefore, as a first step towards mitigating the harms of CO, countries
could at least require all publicly-funded hospitals to provide abortions, like
Portugal has also done. Enforcing such a ban would further serve to discourage
potential objectors from entering any field or speciality that involves abortion
care, thereby reducing the number of objectors even more over time, until it
becomes feasible to ban CO entirely. This does not interfere with the conscience
of individual HCPs, because if someone objects to doing abortions, the only true
way to exercise freedom of conscience is to not enter the speciality of
Obstetrics/Gynecology in the first place (or family medicine, midwifery, etc.),
just as any true objector to killing in war should not voluntarily enter the
military.
Of course, the more objectors a country has, the more difficult it is to
assure services for women, especially in strongly-Catholic countries. This is
the case even if they make efforts to limit CO through regulation, such as in
some Latin American countries as well as Portugal. Unfortunately, it may not be
possible to fix this situation until organized religion loses much of its
influence, and paternalistic attitudes about women subside.
Colombia is actually a good example of how the attempt to regulate conscience
generally falls far short of its goals. In 2014, Cabal et al. promoted
Colombia’s CO principles that became law during 2006 to 2009 as ‘strong
guidance’ for other countries, because they offer an ‘informed and balanced
approach to the protection of the freedom of conscience with women’s
reproductive rights, specifically the right to an abortion.’ Yet, in 2016, we
discover from Fink et al. that implementation of the CO regulations in Colombia
has been ‘challenging and contentious’ and ‘inconsistent’, with many hospitals
setting their own policies that openly flout the law, and abortion opponents and
some objectors adopting restrictive interpretations of the law or just ignoring
it completely. In a separate 2016 paper, Uberoi and Galli say that despite
extensive regulation of CO in several Latin American countries to protect
patients, ‘doctors have still sought to abuse their rights’ (Colombia); ‘medical
providers consistently refuse to perform essential services for women’
(Argentina); and ‘doctors have refused to provide [abortion] services’ (Brazil).
Conclusion
Those who want to preserve ‘conscientious objection’ (CO) as a right in
reproductive healthcare seem to treat it like a sacred cow, a religious belief
that cannot be questioned. But mixing religion with evidence-based medicine does
not work and has negative consequences.
Societies should still work to implement recommendations to mitigate CO and its harms, and robustly enforce existing CO regulations. Such measures are essential and will hopefully have positive effects over time. But the primary, transparent objective of these efforts should be to steadily reduce the number of objectors and eventually abolish CO, not save it. That should include the repeal of discriminatory policies and laws4 that mistakenly treat CO as a ‘right’ of health care professionals. Instead, CO should be recognized as fundamentally unethical. It is ‘dishonourable disobedience’ and has no place in reproductive health care.
Conflict of interest
None.
Acknowledgment
None. Also, no sources of funding.