Why efforts to sabotage conscientious objection in healthcare must not stand

Recently, Ronit Y. Stahl, PhD and Ezekiel Emanuel, MD, PhD penned a contentious editorial published in the April 6 edition of New England Journal of Medicine entitled Physicians, Not Conscripts – Conscientious Objection in Health Care. In it, they argue that healthcare providers cannot appeal to conscientious objection to war as justification for their moral refusal to provide certain healthcare services because, unlike conscripted citizens who are forced into military service, healthcare providers freely chose to enter medicine. By Stahl and Emanuel’s reasoning, only consensus morality—the majority preferences of members within the myriad of professional associations, such as the American Medical Association—and not the conscience of individual providers, is capable of dictating a standard-of-care that promotes patient well-being.

If Stahl and Emanuel were to have their way, professional associations like the American College of Obstetricians and Gynecologists (ACOG) would have unaccountable authority to articulate “the professional ethical standards to which all licensed [obstetricians/gynecologists] must adhere.” ACOG would have sole discretion to decide whether or not to grant exceptions to OB/GYNs who conscientiously object to consensus-driven, “professional role morality.” Should such policy become law, providers who have a conscientious objections unacceptable to ACOG—for example, objections to prescribing contraception or providing abortions—would be forced either to quit medicine or to compromise their consciences by providing services they consider immoral.

Stahl and Emanuel’s proposed suppression of healthcare rights of conscience must not stand for at least the following reasons.

Stahl and Emanuel reduce the moral order of medicine to that of law and politics.

(The formulation of this first argument is largely due to the insightful guidance of Father William Virtue.)

The true ends or goods of medicine—to promote life and health—are determined by three orders of the good: (1) the good of the individual person in the physical-natural order; (2) the objective moral good that is normative for all human action in the moral order; and (3) the common good of the political-legal order. But because Stahl and Emanuel fail to recognize that professional medical agencies can only receive the moral good from religion and natural law, their position reduces the true goods of medicine to only two of these orders—the physical and the political—and places authority over both in the hands of the various professional medical associations. Their position assumes that a consensus of opinion from leaders of professional medical agencies who largely adhere to moral relativism can rightfully decide the standard for provision of medical services. It asserts that only these medical governing bodies can define what’s rational and, therefore, what’s ethical in healthcare.

As a result, the discourse ethics of consensus that Stahl and Emanuel endorse reverses the priority of the moral order by subordinating it solely to the domain of the legal-political order of authority. Their consensus ethics supposes that medical conduct is legitimately based on an ever-shifting moral relativism and on the duty of healthcare providers to blindly obey the authority of professional medical associations.

But, as experience and common sense dictate, without the context of an objective moral order, justice within medicine collapses. If agencies like ACOG were to use their power to impose objectively immoral standards on all OB/GYNs, for example, and deny conscientious objection to the minority of their dissenting physicians, a tyrannical rather than a just medical order would prevail.

Stahl and Emanuel define conscience in merely personal, subjective terms.

Stahl and Emanuel imply that judgments of conscience are based on mere personal opinion shaped by relativist notions of the good. But that’s not what conscientious objectors or any acting person is doing when exercising judgments of conscience rightly. Pro-life physicians understand that to act conscientiously, that is, with a “co-knowing of the truth,” they have a duty to intelligently apply two standards to the concrete choice of providing or withholding a particular healthcare service: first, the best medical knowledge regarding the physical-natural health of the human body or psyche; and second, the objective moral truth of human nature (the basic needs and goods of the patient).

For example, when a patient requests a prescription for contraception, a physician may make a judgment of conscience not to prescribe for two sound reasons. First, on the physical-medical level, contraception has a range of contra-indicators due to possible negative side effects which harm a woman’s health. Second, on the moral level, contraception for family planning purposes fails to fulfill the true needs and goods of the patient for life and health, for family and procreation.

On the other hand, the physician may recognize that a patient’s request for a natural system of family planning does fulfill the patient’s physical, psychological, and moral needs and goods—that it does serve the patient’s human flourishing. The physician’s conscience rightly summons him: “Provide it.”

Stahl and Emanuel’s basic misconceptions regarding the objective moral order and the nature of conscience also account for their failure to recognize and, more importantly, to take seriously the personal and professional harms that, predictably, will follow from the suppression of conscience in healthcare.

First, personal harms: (1) To require healthcare personnel to act contrary to their consciences strikes at the heart of who they are; it violates the very person and dignity of the doctor, nurse, or therapist—someone who, by nature, tends to the true and the good and is only fulfilled by doing good and avoiding evil. (2) Conscience coercion interrupts all the stages of the healthcare provider’s ability to act humanly, including the capacity to understand the moral principles of human nature, to reason from these principles, to judge according to them, and to choose and carry out these conscientious judgments in concrete acts. In sum, to coerce religious healthcare providers to act against their moral and religious convictions so radically defaces their dignity, freedom, and moral integrity as to imperil their quest for integral human happiness.

Second, professional harms: (1) To provide a treatment they have judged to be immoral means healthcare providers both confirm patients in their wrongdoing and violate the premier norm of medicine: do no harm. (2) Coercion of healthcare rights of conscience discourages affected professionals and their like-minded conscientious colleagues from remaining in the medical profession, and new healthcare recruits from entering the field. (3) Eliminating conscientious objectors—morally serious person who are unwilling to just follow orders—not only stunts moral diversity within medicine, but also smothers rich moral debate, a genuine means toward maintaining the purity of personal and professional integrity in the art of healing. Stahl and Emanuel are proposing the same suppression of conscience that produced the horrendous Nazi medical experiments and the Tuskegee syphilis experiment; when queried as to why they did what they did, many of the German and Tuskegee doctors and medical professionals hid behind rationalizations of “merely doing the job” and “just following orders.” This is the moral fallout that Stahl and Emanuel hazard in demanding blind obedience to professional norms established on utilitarianism or consequentialism. (4) Forcing providers to bracket their religious convictions and to park moral beliefs outside their offices causes moral distress and anxiety. Anxious clinicians are also distracted ones—healthcare providers who spend more time worrying about their own affairs, and less time focused on the needs of their patients. (5) Finally, to practice within an anti-conscience milieu slowly breeds a callousness within providers, replacing their wholesome empathy toward patients’ vulnerabilities with the attitude that patients don’t deserve caring responses from their physicians.

Stahl and Emanuel are caught in a web of irony and paradox by failure to follow the logic of their major premise.

Stahl and Emanuel ground their wholesale suppression of rights of conscience within American healthcare on this premise: healthcare providers cannot appeal to the example of conscientious objection to war as justification for refusal to provide certain healthcare interventions because, unlike US conscripted citizens who were forced into military service, they freely chose to enter medicine. Stahl and Emanuel write that with voluntary choice comes the corresponding obligation on the part of the physician “to provide, perform, and refer patients for interventions according to the standards of the profession,”even when such interventions violate conscientious convictions.

But if that happens, wouldn’t it represent an ironic turn of events? First, if professional medical associations like ACOG were to appropriate the authority to coerce every member to follow their standards of care, irrespective of convictions of conscience, we would be looking at a whole class of conscripted physicians. In that event, ACOG’s minority of pro-life OB/GYNs would be forced by the majority of ACOG “to provide, perform, and refer patients for interventions” that violate their religious and moral convictions. These pro-life physicians, just like the conscripted objectors before them, would be coerced into doing something that contravenes their consciences.

Second, by proposing to coerce physicians to provide treatment that accords with professional role morality but contravenes their consciences, Stahl and Emanuel would flout one of the essential rubrics of discourse ethics: the individual physician identifies what is rational or the good by freely signing on to a consensus morality that is agreeable to all.

Stahl and Emanuel fail to respect the First Amendment religious liberty clause as well as recognized federal and state protections of physicians’ rights of conscience.

Stahl and Emanuel argue that, because conscientious objection to war and conscientious refusal of certain healthcare interventions are essentially different, conscientious objection to military service is a protected civil right whereas conscientious refusal of specific healthcare treatments is not.

But if we actually read the source cited by Stahl and Emanuel—the Congressional Record for March 27, 1973—we find Senator Frank Church contending that his proposed amendment to the Public Health Service Act Extension should pass the US Senate since what it protects—the right to conscientiously refuse to participate in abortions or sterilization—is, in its essence, the same right exercised in conscientious objection in war. He argues that protecting healthcare rights of conscience does nothing more than o secure for conscientiously objecting institutions and individual physicians and nurses the same freedom of religion and right of conscience awarded to “young men who, because of the tenets of a particular faith, believe they cannot kill another man, but also those who because of their own deepest moral convictions are so persuaded.”

In sum, Senator Church urged passage of his amendment by identifying the source for the quintessential nature of, and protection for, conscientious objection both in war and in healthcare: the free exercise of religion and conscience guaranteed by the First Amendment. “Now, we have to make a choice,” Church declared, “and it would be difficult for me to believe that the Congress of the United States could make any other choice but to uphold freedom of religion, which is one of the most basic and sacred of those liberties for which this land stands” (italics mine).

It follows, then, that by their insistence that conscientious objection in war is essentially dissimilar to that in healthcare, Stahl and Emanuel not only call into question the validity of conscience and freedom of religion protections guaranteed by the First Amendment, but also its statutory extensions in federal and state healthcare-provider conscience protections: the Church, Weldon, and Coats-Snow Amendments, the federal and state Religious Freedom Restoration Act, and the comprehensive state healthcare-provider conscience protection laws in Illinois, Mississippi, and Louisiana.

Stahl and Emanuel misrepresent valid conscientious objection in healthcare.

“No matter how sincerely held,” Stahl and Emanuel maintain, “objections to treating particular classes of patients are indefensible—regardless of whether the objections are based on race, gender, religion, nationality, or sexual orientation.” A few examples will demonstrate that the conscientious providers whose views I represent are not refusing to treat entire classes of persons because of their sexual orientation, gender identity, race, or religion. They are not, in other words, using conscientious refusal of certain medical services as a camouflage for discrimination. They gladly provide any medical or surgical treatment that contributes to the moral/physical wellbeing of their homosexual, transgender, African-American, or Buddhist patients, and only conscientiously decline specific treatment requests that fail to serve providers’ or patients’ good.

A gynecologist, for instance, may treat a lesbian patient in a same-sex marriage for endometriosis and polycystic ovaries, but once these pathologies are resolved and the patient returns requesting Clomid to stimulate her ovaries in hopes of conceiving a child with IUI and donor sperm, the clinician declines to do so. The physician explains that while she has no moral reservations about improving the woman’s health and wellbeing by treating her gynecological abnormalities, she does have a moral objection to providing Clomid. Since the only goal of giving Clomid would be to help the patient conceive a child, doing so would make the practitioner morally complicit in facilitating a pregnancy outside a heterosexual marriage and in depriving the child of the complementary parenting of a mother and a father. In other words, providing the drug would contradict her religious convictions about the meaning of marriage and family.

An OB/GYN may continue to provide pap tests and mammograms for a transgender male patient who has not yet undergone transgender surgery, but conscientiously refuse to provide the patient’s request for a hysterectomy. The physician does so based on her moral and medical conviction that removal of a perfectly healthy uterus constitutes mutilation, and performing a hysterectomy as the initial step of transsexual surgery fails to adequately address the patient’s gender dysphoria.

Conclusion

So, what should pro-life medical providers do in the face of a majoritarian professional morality hell-bent on suppressing their rights of conscience? How can they subvert the tyranny of moral relativism in healthcare? In the short-term: pro-life physicians should do precisely what Stahl and Emanuel disparage: continue to draw up and support passage of federal and state statutes protecting healthcare rights of conscience as an effort—and perhaps the only current means—to insure they can survive the rise of Stahl and Emanuel’s consensus rationality and morality.

In the long-term: conscientious physicians should work diligently to advance pro-life proponents of the objective morality of natural law to the teaching faculty of medical and law schools where they can actively form physicians, lawyers, and judges. Only then will natural-law theorists have a shot at seats in the boardrooms of professional medical associations. Only then will they be able to shape a standard-of-care in their respective specialties representative of truly good medicine.