Principled Conscientious Provision
Abram Brummett, PhD, HEC-C, Oakland University William Beaumont School of Medicine, Rochester, MI, and Corewell Health William Beaumont University Hospital, Royal Oak, MI
Following decades of debate, U.S. law now grants expansive protections for individuals and institutions to conscientiously object to provide legal and professionally accepted treatment. In contrast, the issue of conscientious provision has received comparatively little scholarly attention and enjoys no legal protections. By only protecting conscientious objections, U.S. law has created a conscience asymmetry. In practice, this asymmetry usually privileges conservative religious or moral values associated with objection over secular moral values associated with provision.
The conscientious provision of illegal medical goods and services has received renewed scholarly interest after the U.S. Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization. Some bioethicists have argued legal change, such as attenuated sanctions or exemptions for conscientious provision. Others have focused on the response of professional societies, such as supporting civil disobedience or advocating for legal change. Because these arguments involve the provision of illegal medical treatment, they can be understood as defenses of medical civil disobedience.
In contrast, the arguments we advance in this essay focus on clinicians who wish to provide legal and professionally accepted treatments that are prohibited within their (usually Catholic) healthcare institutions. Currently, these forms of conscientious provision receive no legal protections, resulting in a conscience asymmetry. For example, a clinician who conscientiously objects to providing a prescription for birth control in a secular hospital is legally protected, but a clinician who wishes to conscientiously provide a prescription for birth control in a Catholic hospital is not.
There are three ways to respond to this conscience asymmetry. One is to offer a moral justification for the conscience asymmetry. Another is to argue for conscience symmetry, in general, which could be accomplished either by creating legal protections for all conscientious provisions or by removing protections for all conscientious objections. This essay explores a third option—legal protection for only some forms of conscientious provision in Catholic hospitals.
We develop our defense of limited conscientious provision rights by rejecting the current “referral asymmetry.” A referral is any verbal or written act that tells the patient where they can obtain a legal and professionally accepted medical service or that formally authorizes (for insurance purposes) the patient to see a specialist other than their primary care provider. The referral asymmetry refers to the fact that clinicians at secular hospitals are legally protected when they refuse to refer patients to receive treatments that are permitted at their hospital, while clinicians at Catholic hospitals are not legally protected if they provide referrals for treatments, such as contraception, sterilization, and abortion, that are prohibited by the Ethical and Religious Directives for Catholic Health Care Services (ERDs).
Our argument advances in three parts. First, we argue that conscientious refusal to refer and conscientious provision of referral should have equal legal protection. That is, we argue for one kind of referral symmetry. Second, we propose that referral-related conscience rights should be leveled-up by expanding legal protections for the conscientious provision of referrals. Finally, we explore the implications of leveling-up referral-related conscience rights by identifying a key principle—the principle of comparably trivial institutional burdens—that can be used to justify legal protections for some forms of conscientious provision (e.g., referral for contraception, writing prescriptions for medication abortion) without grounding legal rights for all forms of conscientious provision (e.g., providing surgical abortions). Our focus on the Catholic context is motivated by the large and growing presence of Catholic institutions in the delivery of healthcare in the United States. For example, 38% of women of reproductive age live in counties with a high Catholic hospital market share, and 52% of obstetrician-gynecologists working in Catholic hospitals report having a conflict with their institution over religiously based policies.
This paper argues for establishing limited legal rights for conscientious provision. In a liberal democratic society, legal rights require public justifications. Accordingly, the arguments we advance in this paper aim to satisfy the reciprocity criterion of public reason, which asks interlocuters in the public sphere to offer one another reasons they can reasonably expect persons committed to different comprehensive doctrines to accept. We also expect objections to our arguments to meet the same standard. Accordingly, we reject attempts to justify the referral asymmetry that rely on special pleading for particular religious or philosophical traditions, such as the claim that referral should remain prohibited because the views of the Catholic Church are objectively true.
The conscientious provision of illegal medical goods and services has received renewed scholarly interest after the U.S. Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization. Some bioethicists have argued legal change, such as attenuated sanctions or exemptions for conscientious provision. Others have focused on the response of professional societies, such as supporting civil disobedience or advocating for legal change. Because these arguments involve the provision of illegal medical treatment, they can be understood as defenses of medical civil disobedience.
In contrast, the arguments we advance in this essay focus on clinicians who wish to provide legal and professionally accepted treatments that are prohibited within their (usually Catholic) healthcare institutions. Currently, these forms of conscientious provision receive no legal protections, resulting in a conscience asymmetry. For example, a clinician who conscientiously objects to providing a prescription for birth control in a secular hospital is legally protected, but a clinician who wishes to conscientiously provide a prescription for birth control in a Catholic hospital is not.
There are three ways to respond to this conscience asymmetry. One is to offer a moral justification for the conscience asymmetry. Another is to argue for conscience symmetry, in general, which could be accomplished either by creating legal protections for all conscientious provisions or by removing protections for all conscientious objections. This essay explores a third option—legal protection for only some forms of conscientious provision in Catholic hospitals.
We develop our defense of limited conscientious provision rights by rejecting the current “referral asymmetry.” A referral is any verbal or written act that tells the patient where they can obtain a legal and professionally accepted medical service or that formally authorizes (for insurance purposes) the patient to see a specialist other than their primary care provider. The referral asymmetry refers to the fact that clinicians at secular hospitals are legally protected when they refuse to refer patients to receive treatments that are permitted at their hospital, while clinicians at Catholic hospitals are not legally protected if they provide referrals for treatments, such as contraception, sterilization, and abortion, that are prohibited by the Ethical and Religious Directives for Catholic Health Care Services (ERDs).
Our argument advances in three parts. First, we argue that conscientious refusal to refer and conscientious provision of referral should have equal legal protection. That is, we argue for one kind of referral symmetry. Second, we propose that referral-related conscience rights should be leveled-up by expanding legal protections for the conscientious provision of referrals. Finally, we explore the implications of leveling-up referral-related conscience rights by identifying a key principle—the principle of comparably trivial institutional burdens—that can be used to justify legal protections for some forms of conscientious provision (e.g., referral for contraception, writing prescriptions for medication abortion) without grounding legal rights for all forms of conscientious provision (e.g., providing surgical abortions). Our focus on the Catholic context is motivated by the large and growing presence of Catholic institutions in the delivery of healthcare in the United States. For example, 38% of women of reproductive age live in counties with a high Catholic hospital market share, and 52% of obstetrician-gynecologists working in Catholic hospitals report having a conflict with their institution over religiously based policies.
This paper argues for establishing limited legal rights for conscientious provision. In a liberal democratic society, legal rights require public justifications. Accordingly, the arguments we advance in this paper aim to satisfy the reciprocity criterion of public reason, which asks interlocuters in the public sphere to offer one another reasons they can reasonably expect persons committed to different comprehensive doctrines to accept. We also expect objections to our arguments to meet the same standard. Accordingly, we reject attempts to justify the referral asymmetry that rely on special pleading for particular religious or philosophical traditions, such as the claim that referral should remain prohibited because the views of the Catholic Church are objectively true.