The right of conscience in medicine
The right of conscience in medicine generated very little discussion prior to the current generation. It was assumed for centuries. Physicians took a primarily paternalistic approach to patient care — this is what’s wrong; this is what we need to do; let’s go ahead and do it. In the 1960’s and ‘70’s, individual autonomy emerged in western society — individual rights, women’s rights, minority rights, consumer rights, and yes, patient rights. Patients rightly demanded greater say in their own medical care. When the locus of decision-making shifted at least partially from physician to patient, many thought that the patient could not only refuse treatment, but could also demand treatment. Only in this autonomy-focused setting has the physician’s right of conscience become an issue.
The concomitant legalization of abortion, which had been morally and legally forbidden for centuries, brought the issue into sharp focus. Can a physician or other healthcare professional who still considered abortion to be immoral be forced to participate in this procedure? Or in broader terms, does a healthcare professional have the right to refuse to provide a particular service based on religious beliefs?
This concern about the right of conscience in healthcare, while most often raised in relation to abortion, is also a factor in other areas of the practice of obstetrics and gynecology (sterilization, contraception, assisted reproductive technology) and in other medical disciplines as well[7]. For example, a Roman Catholic physician, nurse or pharmacist may be unwilling to participate in distribution of any contraceptive; or the professional may be unwilling to provide contraception for an unmarried person or to assist a woman to get pregnant if she is only involved in a same-sex relationship.
With the long history of unquestioned right of conscience for healthcare professionals, it is not surprising that the response to this question has been quite uniform and quite broad. The medical right of conscience has been codified in U.S. medicine[8], U.S. federal law[9], U.S. state laws[10], international law[11], and international medicine[12]. Some of these policies or laws, however, carve out exceptions “in cases of emergency” and/or include provisions that require the dissenting healthcare professional to refer to a willing professional.
The issue of moral complicity
Such articulations of less than clear boundaries broadens the question from “doing” the procedure one considers immoral, to assisting directly, assisting indirectly or referral of patients. Different people may draw their lines of moral complicity differently. One physician may be unwilling to do an abortion, but willing to refer; another may be unwilling to refer, believing that makes him or her complicit in an immoral act. One non-professional may be unwilling to work in a general OB/GYN clinic where abortion is one of the services offered, another may be willing to work there, but decline to participate in any aspect of the procedure, and yet another may feel sufficiently removed from the procedure so as to be willing to check in patients, sterilize instruments, etc.
In thinking about the issue of moral complicity, I have previously stated that many factors may enter into one’s perception of involvement: timing, proximity, certitude, awareness, and intent[13].
Opposition to a healthcare right of conscience
Support for the healthcare professional’s right of conscience has not been universal. Organizations like Planned Parenthood and the American Civil Liberties Union have formally objected. The bases for objection are basically of two types: (1) doctors no longer have extraordinary privileges because of the prominence accorded to patient autonomy, and (2) doctors have the duty to provide all legal services. Legal cases involving the right of conscience of individuals or institutions have been taken to court in several states[14].
Alta Charo, an attorney and teacher of bioethics at the University of Wisconsin has written “Should the public square be a place for the unfettered expression of religious beliefs…? … Until recently, it was accepted that the public square in this country would be dominated by Christianity. …[A]theists, agnostics, and members of minority religions view themselves as oppressed… [F]rustrated patients view conscience clauses as legalized discrimination.” She goes on to conclude “…[T]he states…give these professionals the exclusive right to offer such services. By granting a monopoly, they turn the profession into a kind of public utility.”[15]