Conscientious objection: a morally insupportable misuse of authority

Abstract

In this paper, I argue that the conscience clause around abortion provision in England, Scotland and Wales is inadequate for two reasons. First, the patient and doctor are differently situated with respect to social power. Doctors occupy a position of significant moral and epistemic authority with respect to their patients, who are vulnerable and relatively disempowered. Doctors are rightly required to disclose their conscientious objection, but given the positioning of the patient and doctor, the act of doing so exploits the authority of the medical establishment in asserting the legitimacy of a particular moral view. Second, the conscientious objector plays an unusual and self-defeating moral role. Since she must immediately refer the patient on to another doctor who does not hold a conscientious objection, she becomes complicit, via her necessary causal role, in the implementation of the procedure. This means that doctors are not able to prevent abortions, rather, they are required to ensure that they are carried out, albeit by others. Since removing the disclosure and referral requirements may prevent patients from accessing standard medical care, the conscience clause should instead be revoked, and those opposed to abortion should be encouraged to select other specialities or professions. This would protect patients from judgement, and doctors from complicity.

Keywords

Conscientious objection abortion applied and professional ethics

Introduction

Subject to certain restrictions, abortion services have been legal in England, Wales and Scotland since the introduction of the 1967 Abortion Act,¹ which also enshrines the right of service providers to conscientiously object to participation in abortion provision. The right to conscientiously object to the provision of certain medical treatments (currently limited to fertility treatments involving embryos and termination of pregnancy) is contested. It has been argued² that since working as a medical professional involves providing medical care in accordance with the law, conscience-based refusals are incompatible with professional responsibilities. This is known as the ‘incompatibility thesis’.³ Others have defended the conscience clause on the grounds that protecting moral integrity is an important value in itself.^4,5

The General Medical Council⁶ (GMC) outlines the requirements of the conscience clause in terms of good medical practice. Doctors wishing to conscientiously object to abortion provision are required to do so in accordance with guidelines which recommend that a conscientiously objecting doctor (hereafter: COD) operating in terms of optimal best practice will implement her conscientious objectionence in the following way:

Advertise her status as a COD.

Tell the patient that she will not perform, or refer for, abortions.

Inform the patient that she is entitled to speak to a non-COD.

Ensure the patient has the information of a known non-COD, or hand over the patient to a non-COD without delay.

Were doctors to attend to the requirement in (a), and clearly indicate to patients and colleagues their intention to conscientiously object, in such a way as to avoid consultations with patients requesting abortions, the successive guidelines would be somewhat moot. As it is, pragmatic barriers prevent this from being the case. Patients invariably initially see whichever doctor is available at the time of need, doctors regularly move between placements at different hospitals and clinics, and there are no obvious fora for promoting one’s moral views in advance of consultation.

Requirements (a) to (d) constitute what Brock⁷ calls the ‘conventional compromise’ for conscientious objection, which states that doctors may conscientiously object provided they adequately inform the patient of other services, refer the patient on to those services, and that this does not place an unreasonable burden upon the patient.

In this paper, I wish to explore two facets of the requirements on CODs. The first is the ‘disclosure’ requirement, summarised in (a) and (b); the second is the ‘referral’ requirement, summarised in (c) and (d). I show that these two aspects of the conscience clause render it both morally problematic and ultimately ineffective. I do so by exploring the social meaning of medicine and medical professionals within the broader epistemic community in which they work, as a way of demonstrating that doctors’ speech acts must carry a level of responsibility which reflects the authority they bear. I also explore the meaning of conscience and its relationship to complicity, in order to assess whether the conscience clause achieves its own ends of protecting doctors’ moral integrity.

In the following section, I argue that the disclosure requirement is a misuse of the social role of doctors as authoritative epistemic agents, and, in the subsequent section, that the referral requirement undermines the purpose of the conscience clause by making the COD complicit in the delivery of the abortion. I will attempt to answer two questions: (a) what effect does the disclosure requirement have on the patient? (b) What effect does the referral requirement have on the doctor?

I will demonstrate that these requirements undermine the objective of the conscience clause, which is to offer doctors the option of saving their consciences without negatively impacting on patient care. I will argue that:

the disclosure requirement involves a misuse of the power and authority of doctors which negatively impacts patient care;

the referral requirement renders doctors complicit in abortions, and therefore does not save their consciences;

any attempt to remove or weaken either the disclosure or referral requirement makes the compromise even more compromising to both parties.

Misusing authority: The disclosure requirement

Doctors and patients are not equally positioned within a consultation, but occupy poles of a power dynamic as a result of their roles within the interaction. This power disparity has multiple causes. First, patients are disempowered due to the vulnerabilities arising from ill-health, and medical professionals are empowered by their (assumed or actual) capacity to relieve pain or discomfort. Further, as a rule, patients are not scientifically literate, while medical professionals are known to have undertaken extended, rigorous training pathways in elite institutions.⁸ This produces a mystique which is connected with medical personnel, apparatus, environments, and nomenclature, all of which concentrate in a highly ritualised context, in which the ease and convenience of the consultation or treatment might be jeopardised if the patient openly opposed the doctor's authority.Patients are therefore understandably more likely to trust and comply with their doctors' recommendations rather than interrogate or resist.⁹

Further, medicine itself evokes a strong moral legitimacy. It is widely believed that the medical enterprise is motivated by morality, and that those within it share this moral legitimacy. Of course, even socialised medical systems are economically justified,¹⁰ and doctors benefit from attractive remuneration packages, and greater job security than many other employment sectors. In other words,moral motivations may not be most determinative for those entering the profession. This notwithstanding, there is a widespread belief that medical professionals are ‘good’ people, whose choice of profession evidences a commitment to doing what is ‘right,' and this impression is likely to influence patients’ responses to doctors’ moral judgements.

It is also important to consider the social context of abortion. Abortion is still associated with considerable stigma. Although it is socially acceptable to defend (even publicly) the right to abortion services, having an abortion is a different matter. Discussing one’s own abortion, or requesting it, remains challenging and uncomfortable, and women who do so may experience stigma.¹¹ It is one thing to endorse philosophical arguments; it is another to personally undergo a procedure which others equate to murder, even if one vehemently disagrees with them. The presence of anti-abortion protesters outside abortion clinics exacerbates this discomfort and vulnerability.

A ‘best practice’ disclosure?

A ‘best practice’ disclosure must presumably leave the patient clear that abortions are legal in England, Scotland and Wales, subject to certain conditions. Not all patients will be positioned to fully understand what is meant by conscientious objection and may interpret the unexpected complication as a more general barrier to abortion. Revealing the moral nature of the impediment reassures them that the reason for complication or delay is limited to the particular doctor they have seen and is not indicative of other complications and delays, or of a more systemic disdain for abortion. Therefore, making a distinction between legal/professional guidelines and personal views is vital. A best practice disclosure in line with GMC best practice might therefore sound like this: ‘I will not approve this treatment because I have moral reservations about abortion, but it is perfectly legal, and I will now assist you in ensuring that another doctor helps you to access the treatment’.

Yet, in disclosing a moral reservation, the doctor runs the risk of producing moral distress in the patient. The disclosure of a moral reservation by a powerful and respected person, to a vulnerable person, against the backdrop of a society in which abortion is still stigmatised, seems deeply problematic. When a person whose role confers epistemic and moral credibility endorses a moral position within that context, they are liable to bring about shame, guilt, discomfort and in some cases, deterrence. Given that conscientious objection is supposed to place no burdens upon the patient, this disclosure seems to violate that aim. Although in well-managed cases there may be no practical burden, there is clearly considerable risk of an emotional/moral burden. This combination of epistemic authority and moral authority is dangerous in relation to abortion, since patients are likely to approach doctors in states of distress and uncertainty.

Savulescu, a vocal opponent of conscience clauses in medicine, recommends that abortion consultations be managed in accordance with ‘rational non-interventional paternalism,’^12,13 according to which doctors engage in non-directive moral dialogue with patients, permitting the patient to make the eventual decision. Yet, this is clearly not appropriate in this setting for the reasons just mentioned. Specifically, it neglects to consider the power dynamic between patient and doctor, and the broader social meanings of particular medical treatments.

A better ‘best practice’ disclosure?

In order to prevent the misuse of doctors' authority, one could uphold the right to conscientiously object, but require that doctors do not express any moral judgement. What might an improved best practice disclosure consist of then? If the moral judgement is the issue, then perhaps one could avoid or disguise the moral component of the disclosure. Consider this candidate for a ‘better’ best practice disclosure. A doctor might respond to a request for an abortion thus: ‘That’s not part of my role, but there’s another doctor here who deals with abortions.’

This would remove the possibility of doctors’ conscientious objections causing moral distress to their patients, but it raises other problems. First, it would be dishonest, by implicature, since the patient might reasonably infer that only some doctors are permitted to provide signatures/treatment, which would be false. Dishonesty, even in the name of protecting patients, is paternalistic, and if discovered, endangers the extent to which patients can trust their doctors, which is likely to result in a climate in which doctors cannot provide optimal care. Second, it would eliminate the COD’s only opportunity to articulate moral concern, rendering her more complicit in any eventual abortion. It would essentially be a silencing of dissent in relation to a matter of great personal importance to that doctor. It is not clear that any COD would agree to such a route when disclosure offers the only opportunity within the current protocol for CODs to express their strongly-held views on abortion, and may be their only opportunity to offset the moral compromise they may feel in contributing to the eventual procedure.

Conscience and complicity: The referral requirement

‘That’s like saying, ‘I don’t kill people myself but let me tell you about the guy down the street who does.’ What’s that saying? ‘I will not off your husband, but I know a buddy who will?’ It’s the same thing' (Karen Brauer, president of Pharmacists for Life).¹⁴

In the context of abortion provision in medicine, conscience claims need not be justified, and are not scrutinised for authenticity, rather they are deemed to be constitutive of moral integrity, the preservation of which is an important social value. As West-Oram and Buyx note,¹⁵ the right to conscientiously object is thought to be ‘vital for the adequate toleration of different moral and philosophical perspectives in a pluralistic society.’ Failing to act in accordance with one's conscience, or being coerced into violating one's conscience, may be psychologically troubling or even damaging, and it is generally regarded to be preferable toguard against this, especially if there is no cost to others in doing so.

A common argument within this literature^2,4,16 proceeds as follows: we should permit conscientious objection because it is beneficial to medicine for there to be conscientious doctors. There seems to be a scope ambiguity in terms of whose interests these ‘conscientious’ actions are supposed to serve. This argument seems defensible where conscientious action dovetails with the needs of patients and signifies a broader commitment to prioritising their needs across different contexts, even regardless of existing laws/guidelines. It is less obviously defensible when it conflicts with patients' needs in accessing legal treatments. It is not at all clear that we should uphold exercises of moral integrity whose sole beneficiary (if any) is an individual who has alternative employment options (in the form of other specialities), and which will likely inflict harms on multiple vulnerable people with limited options in terms of healthcare provision.

A ‘best practice’ referral?

Let us assume that those opposed to abortion believe that abortion is the murder of a foetus, where foetuses are considered to be persons with as much right to life as other persons. It is not surprising that doctors who hold this view do not want to contribute to, or engage with, the practice of abortion. However, further arguments are required to defend doctors subsequently passing moral judgement and practical burdens onto to their patients.

Rosamund Rhodes¹⁷ points out that 'the doctor who chooses to avoid personal psychic distress declares his willingness to impose burdens of time, inconvenience, financial costs, and rebuke on his patients so that he might feel pure. […] Someone who places his own interests above his patients’ departs from medicine’s standard of altruism and violates a crucial tenet of medical ethics that every physician is duty bound to observe' (p. 78).¹⁸

Yet, the referral requirement precludes the maintenance of this ‘pure’ moral state! Rather, professional guidance requires that the COD ensures that the patient reaches a non-COD without significant delay. This requirement inserts CODs into the causal chain which ends with an abortion; they necessarily become part of the bureaucracy of abortion provision, even if they are not part of its direct physical implementation. While they do not fall within the final two causal steps of providing the abortion, they must become part of the prior link of the causal chain. Therefore, not only can they not prevent an abortion from going ahead, they are required to ensure that it does happen (provided the patient continues to desire it, and is eligible for it), by helping patients reach non-CODs with no loss of time. CODs are de facto abortion facilitators.

As Schuklenk notes, 'from a conscientious objector’s perspective, this compromise is anything but a compromise. If I object to abortion because I believe that abortion is akin to murder, as Christian objectors happen to believe, surely my moral responsibility is barely smaller if I knowingly pass a pregnant woman looking for an abortion on to a colleague who will commit the act rather than if I do it myself.'¹⁹

The ‘conventional compromise’ is therefore no such compromise for those who believe that abortion is equivalent to murder, for they are required to assume complicity in that ‘murder.’ It may qualify as a compromise for mere ‘yuck factor’ objectors (i.e. those who find abortion to be moderately discomfiting), but those concerns are surely not sufficiently powerful to justify reducing the quality of patient care; medicine is, after all, a challenging profession.²⁰

If a person strongly believes that an act is objectionable, where possible they should obviously not engage with that act. They certainly should not pursue an area of employment in which their only options are to be at one, two, or three removes from its instantiation. In the case of doctors, medicine is not a profession that one is obliged to enter out of desperation (compare with the moral distress many abattoir workers must face), and within medicine, there are a wide range of sub-specialties, most of which permit the doctor to avoid abortions altogether. It shows low regard for ones' conscience to place it second to a preferred choice of sub-specialty. If a person does decide to relegate and devalue her conscience in this way, why should others then make allowances for the protection of that conscience?

Before closing this section, I wish to address a potential objection to this line of reasoning. While CODs are required to provide information about non-CODs, professional guidance does not require them to directly refer the patient to those doctors, but merely to provide information about non-CODs. This might be seen to undermine my claim that conscientiously objecting doctors become part of the causal chain which ends with abortion.²¹ Two things can be said in response. First, I am concerned not with the ‘bare minimum’ in terms of adherence to professional guidelines, but rather with how doctors might exemplify ‘best practice’ in relation to conscience claims. While professional guidance may not require a direct referral, doctors are supposed to be primarily concerned with delivering patient-centred care, and in that case, since professional guidance demands that one act without delay to the patient, one might argue that direct referral is nonetheless the most professionally appropriate course of action. Second, in a sense, providing information about CODs is equivalent to making a medical referral, since referrals to specialists routinely require patients to arrange their own appointments with the department in question, based on information and permission provided by their general practitioner.²²

A better ‘best practice’ referral?

Coupling conscientious objection with a referral requirement means that doctors are not able to prevent abortions, but are instead required to ensure that they are carried out, albeit by others. As such, the operative moral that the conscience clause protects is not that foetuses should not be aborted, but that a doctor's role in the abortion should be one step further away from the abortion than her non-COD colleague. It is not clear that this is a worthy cause if its motivating value – that foetuses should not be aborted – is entirely unaffected. Nor is it clear that any ethical theory or rational moral agent could easily accommodate such undermining conditions on the practice of morals.

What might a better ‘best practice’ referral look like? It seems as though principled CODs should deliberately train in general practice or obstetrics and gynaecology and then illicitly or openly refuse to refer.²³ This would ease their consciences, but it would also deprive patients of standard medical care, and thereby disregard their autonomy, which is an important tenet of medical ethics. It would ultimately end with CODs being struck off the medical register and losing their ability to act as gatekeepers for abortion services, so as a long-term strategy it would be self-defeating.

Since dropping the referral requirement would mean patients would not have reliable access to a standard medical procedure, we should instead revoke the conscience clause and encourage those opposed to abortion to select other specialities or professions.

Conclusion

The conscience clause for CODs working in England, Scotland and Wales is self-defeating. It promises to balance the health needs of patients against the limits of doctors' consciences, and ultimately serves neither adequately. If it were to be made stronger, so that doctors did not need to facilitate the patient’s consultation with a non-COD, their conscience needs would be better met, but patients would be impeded from accessing a legal treatment upon which their right to bodily autonomy depends. If it were to be made weaker and forbade doctors from articulating their personal views on abortion while ensuring immediate referral to a known non-COD, the health needs of vulnerable patients would be better met, but the complicity of CODs in the delivery of abortion would be prohibitively violating to their consciences.

CODS are ostensibly being permitted to exercise their consciences, but in reality they are buraeucrats in a system which ensures that women can exercise their free and legal right to an abortion. It would be more respectful for legislators and professional bodies to remove the conscience clause in recognition of the fact that the serious consciences they wish to respect cannot be fobbed off so easily.

CODs should conscientiously object by electing not to enter specialties which may involve being complicit in abortion provision. Then the concerns about both referral and disclosure disappear. Junior CODs might claim it would be unfair to leave them fewer specialties to choose from. But surely it is a point of pride, and a powerful enactment of principle, to boycott something one believes is deeply wrong, and most importantly of all, it is a great and rare privilege to be able to do so within one’s own profession, due to the breadth of available specialities.

The current disclosure requirement leaves already vulnerable patients are exposed to the burdens of moral judgement by doctors, whose effect is exacerbated by the unequal power dynamic which characterises medical consultations. The current referral requirement leaves CODs very proximally complicit in the provision of abortion. We should abolish the conscience clause and protect both groups at once.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

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The tenet in question is beneficence, which requires that the patient’s best interests be the driving concern of the doctor. However, one could equally argue that such a doctor would also be violating the principle of non-maleficence by causing distress to the patient, as well as the principle of autonomy, by denying the patient her right to make a decision about her health.

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Consider that other aspects of standard medical care, such as triage and surgery, may also elicit ‘yuck factor’ responses.

21.

Thanks to a reviewer for identifying this issue.

22.

In such cases, the referring doctor ‘permits’ the specialist case, rather than just providing information, but this is a form of gate-keeping that is not substantively different to the gate-keeping undertaken by providing the information of someone one knows to be a non-COD, which is information the patient could not readily access.

23.

Fiala and Arthur²⁴ (pp. 13–14) outline several cases in which medical professionals either refuse to refer, or deliberately delay or withhold legal treatment, thereby over-stepping what the conscience clause permits.

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‘ Dishonourable disobedience” – why refusal to treat in reproductive healthcare is not conscientious objection. Woman-Psychosom Gynaecol Obstet 2014; 1: 12–23.