The right of healthcare professionals to decline participation in specific procedures they believe to be immoral has been an unquestioned tenet of medicine for centuries. Since the shift in medical ethics in the past generation whereby patient autonomy has become the dominant principle, this right of conscience has been challenged. It has been most directly challenged by Opinion #385 issued by the American College of Obstetricians and Gynecologists (ACOG) in November 2007. This article reviews the pertinent history of medical ethics, focusing on the right of conscience, and the ethical issue of moral complicity. It then presents recent challenges to the right of conscience, including some specific recommendations from the ACOG proposal to limit that right, and goes on to articulate their flawed assumptions.
A (very) brief review of the history of contemporary medical ethics
Discussions of ethical matters in the practice of medicine date back to Hippocrates in the fifth century before Christ. However, the era of formal medical ethics began in the early 19th century and became even more relevant to contemporary medicine as recently as the 1960’s. At that time, technological advances caused physicians to ask some “Can we…?” questions. Can we dialyze patients with kidney failure? Can we use ventilators to breathe for patients in respiratory failure? Can we transplant new hearts into dying patients? And the answers were most often “Yes, we can.”
Theologians, however, were prompted to ask instead the “Should we…?” questions. Should we dialyze this patient? Or, more on point, how do you justify not dialyzing this patient? Should we retrieve hearts from people at the moment of death? And there were similar questions about the application of several other technologies. Roman Catholic, Jewish, Protestant and Islamic theologians initiated the era of contemporary medical ethics in the mid-20th century. In their 1993 retrospective book, Lammers and Verhey focused on significant contributions of nine theologians who pioneered in the field. Many people involved in the practice of medicine and public policy were eager to hear theological views on such questions. Others, however, felt “religion is a private matter” and should not be part of the public dialogue.
Several pivotal questions raised by the theological voice concerned matters of life and death, both at the beginning and ending of human life. These were prompted, of course, by the tenet of the Imago Dei articulated in all three of the monotheistic faith traditions, and were informed by theological beliefs about justice.
After more than a decade of public discussion, the newly developed “right of privacy” was sanctioned by the 1973 U.S. Supreme Court in the Roe v Wade decision which rendered null and void all state laws which prohibited abortion. Sadly, in my opinion, the theological voice was split in its response to this sea change.
At about the same time, secularists who felt the theological voice was too prominent or too biased in these discussions began to shift the focus of discussion from places of worship and schools of theology to the academy and the courts. Rather rapidly, philosophers, attorneys, judges, and individuals in public policy became the voice of medical ethics. The theological voice was marginalized, ignored, or even ridiculed.
In spite of this shift, it was recognized even by the secularists, that individuals of faith should be protected from discrimination if healthcare professionals acted (or declined to act) based on their religious beliefs. This protection came from the right of conscience.
The right of conscience
The right of conscience is the right of an individual to refuse to do something requested by another based on his or her own conscience or religious beliefs. Probably the most easily recognized example is the conscientious objector who is conscripted into military service and is unwilling to engage in combat, or sometimes even in a supportive military role.
This is not a newly recognized right. It has been well accepted in theological and theocratic circles for millennia that an individual believer was to resist imposed practices that were contrary to his beliefs, though the obligation often carried negative consequences (e.g., Daniel chapter 6). This right began to gain credence in secular circles during the Enlightenment, and was clearly articulated by Thomas Paine and Thomas Jefferson. The right of conscience was clearly stated in early drafts of Madison’s first amendment to the Constitution, though obscured in the shortened final version.