Conscientious Refusals in Health Care
Panelists: Jason Eberl, PhD, Director and Professor of Health Care Ethics, Albert Gnaegi Center for Health Care Ethics, Saint Louis University; Abram Brummett, Alden March Bioethics Institute, Albany Medical College; and Lisa Fullam, Jesuit School of Theology, Santa Clara University
The ethical justifiability of accommodating conscientious refusals in health care has become a hotly contested issue. This debate has been fueled recently by perennial debates concerning abortion and contraception, expanded legalization of physician-assisted dying, public health crises that impact reproduction (e.g., Zika), and greater recognition of the rights of LGBT patients. Between absolutist defenses of a right to conscientious refusal in any case in which a health care provider (whether individual or institution) considers their conscience/mission to be implicated, and calls to abolish any legal protection of conscientious refusals, lie various “compromise” proposals that seek to safeguard health care providers’ exercise of conscience as well as patients’ access to legal, but morally contentious, medical services. As we consider the future of medicine and the seemingly combative interactions between secular and religious viewpoints on these morally contested issues, it is more critical than ever to examine whether some form of compromise proposal can be coherently formulated and consistently put into practice. This panel will comprise three speakers representing diverse philosophical and theological perspectives on the conceptual formulation of “conscience” and implications for health care policy and clinical practice going forward.
The first presenter begins by noting that, too often, conscience is used as a trump card flung down to halt conversation: “I can’t do that—it violates my conscience.” However, the importance of forming one’s conscience would seem to imply that a claim of conscience is the beginning of a conversation, not the end of one. Then what? First, how far one should yield to a conscience claim (or hold on to one’s own) depends on the probability of the claim itself. Where there are reasonable alternative opinions, the medical professional should, out of respect for the patient’s own conscience, be willing to refer to another provider. Also, any adequate consideration should include asking whether toleration or cooperation is in order—and if not, why not? In sum, there are limits to licit conscience claims, and there are limits to the degree to which a provider’s conscience claim should be denied. And in the stormy area in between, there are tools to help us navigate tricky waters.
The second presenter focuses on Robert Card’s proposed reasonability view that asks providers to state the reasons for their conscientious objection for evaluation and approval by a review board. Jason Marsh has challenged Card to provide explicit criteria for what makes a conscientious objection reasonable, which he claims will be too difficult a task given that such objections often involve contentious metaphysical or religious claims. Card has responded to Marsh by outlining standards by which a conscientious objection could be judged reasonable, standards further expanded upon by Xavier Symons. The presenter doubles down on Marsh’s critique by arguing that the reasonability view as articulated by Card and Symons has yet to address the underlying metaphysical and religious claims that often motivate conscientious objections. The presenter’s aim is not to reject the reasonability view outright, but only to argue that the standards offered by Card and Symons, while helpful, are not able to exclude some conscientious objections that seem prima facie unreasonable. The presenter ends by challenging bioethicists to articulate a more robust reasonability view capable of addressing the metaphysical and religious claims that often motivate, not only conscientious objections, but many disputes in bioethics.
The final presenter defends a “reasonable compromise” view in which respect for conscientious refusal claims is based on the adjudication of publicly defensible reasons articulated by providers, or a general consensus that such services are morally contestable on reasonable grounds. In making this defense, the presenter will respond to critiques of Card’s and other “reasonability” views of validating claims of conscience, particularly ones that are premised upon defensible, if defeasible, metaphysical claims. Typically, compromise views require health care professionals to be transparent in their refusals, offer unbiased information regarding available health care services, and provide referrals or transfers of care when necessary to ensure access. Such compromises raise the specter of moral complicity and potential moral scandal by virtue of seemingly approving of such services. The presenter elucidates various criteria by which degrees of moral complicity may be assessed, as well as operative distinctions within the concept of scandal, which subserve a nuanced analysis of complicity and scandal with respect to transparency, information, and referral/transfer.
The first presenter begins by noting that, too often, conscience is used as a trump card flung down to halt conversation: “I can’t do that—it violates my conscience.” However, the importance of forming one’s conscience would seem to imply that a claim of conscience is the beginning of a conversation, not the end of one. Then what? First, how far one should yield to a conscience claim (or hold on to one’s own) depends on the probability of the claim itself. Where there are reasonable alternative opinions, the medical professional should, out of respect for the patient’s own conscience, be willing to refer to another provider. Also, any adequate consideration should include asking whether toleration or cooperation is in order—and if not, why not? In sum, there are limits to licit conscience claims, and there are limits to the degree to which a provider’s conscience claim should be denied. And in the stormy area in between, there are tools to help us navigate tricky waters.
The second presenter focuses on Robert Card’s proposed reasonability view that asks providers to state the reasons for their conscientious objection for evaluation and approval by a review board. Jason Marsh has challenged Card to provide explicit criteria for what makes a conscientious objection reasonable, which he claims will be too difficult a task given that such objections often involve contentious metaphysical or religious claims. Card has responded to Marsh by outlining standards by which a conscientious objection could be judged reasonable, standards further expanded upon by Xavier Symons. The presenter doubles down on Marsh’s critique by arguing that the reasonability view as articulated by Card and Symons has yet to address the underlying metaphysical and religious claims that often motivate conscientious objections. The presenter’s aim is not to reject the reasonability view outright, but only to argue that the standards offered by Card and Symons, while helpful, are not able to exclude some conscientious objections that seem prima facie unreasonable. The presenter ends by challenging bioethicists to articulate a more robust reasonability view capable of addressing the metaphysical and religious claims that often motivate, not only conscientious objections, but many disputes in bioethics.
The final presenter defends a “reasonable compromise” view in which respect for conscientious refusal claims is based on the adjudication of publicly defensible reasons articulated by providers, or a general consensus that such services are morally contestable on reasonable grounds. In making this defense, the presenter will respond to critiques of Card’s and other “reasonability” views of validating claims of conscience, particularly ones that are premised upon defensible, if defeasible, metaphysical claims. Typically, compromise views require health care professionals to be transparent in their refusals, offer unbiased information regarding available health care services, and provide referrals or transfers of care when necessary to ensure access. Such compromises raise the specter of moral complicity and potential moral scandal by virtue of seemingly approving of such services. The presenter elucidates various criteria by which degrees of moral complicity may be assessed, as well as operative distinctions within the concept of scandal, which subserve a nuanced analysis of complicity and scandal with respect to transparency, information, and referral/transfer.