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.
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. 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, U.S. federal law, U.S. state laws, international law, and international medicine. 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.
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.
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.”
Julian Savulescu, Oxford philosopher, has written “When the duty is a true duty, conscientious objection is wrong and immoral. …If people are not prepared to offer legally permitted, efficient, and beneficial care to a patient because it conflicts with their values, they should not be doctors. …Conscientious objectors must ensure that their patients are aware of the care they are entitled to and refer them to another professional. … Conscientious objectors who compromise the care of their patients must be disciplined.”
American College of Obstetrics & Gynecology (ACOG) proposal to limit the Right of Conscience
In November 2007, the ACOG Ethics Committee issued position statement #385 entitled “The Limits of Conscientious Refusal in Reproductive Medicine.” In the statement, they define conscience, define limits for conscientious refusal, delineate institutional and organizational responsibilities, and make seven recommendations. Some of the recommendations are not unreasonable (about accurate and unbiased information, obligation for prior notification), but others are clearly contrary to the longstanding understanding of physicians’ right of conscience.
Recommendation #1 includes “…Any conscientious refusal that conflicts with a patient’s well-being should be accommodated only if the primary duty to the patient can be fulfilled.” According to ACOG, the patient’s wishes trump; her “well-being” is self-defined. Thus, by their assessment, each physician is obligated to provide all services requested by a patient.
Recommendation #4 insists the refusing physician has a duty to refer the requesting patient to a willing physician. They display no regard for physician concerns about moral complicity.
Recommendation #5 includes “In an emergency in which referral is not possible or might negatively affect a patient’s physical or mental health, providers have an obligation to provide medically indicated and requested care regardless of the provider’s personal moral objections.” Though the underlying premise is valid, the services in question are rarely life or death emergencies, and inclusion of a mental health provision boundlessly expands this requirement.
Recommendation #6 says that in resource-poor areas, physicians who are unwilling to provide full reproductive services should “practice in proximity to individuals who do not share their views or ensure that referral processes are in place.” In no other area of medicine is it assumed that every patient must have convenient access to all services. Living in a resource-poor area may mean that a patient does not have access to a dermatologist or a neurosurgeon. Certainly a physician practicing in such an area must be willing to provide all emergency services in which he or she is adequately trained. However, there is no such obligation for elective procedures, even if he or she is capable. In no other area of medicine am I familiar with a professional requirement that a physician must limit or move his or her practice location to satisfy patient requests.
Response to ACOG
I believe the ACOG statement asserting limits to the healthcare professional’s right of conscience is seriously flawed in several areas:
- ACOG maintains that patient autonomy is the final arbiter of treatment decisions. This is not always true. There are clearly times when patient autonomy is not the determinative factor, such as imposed immunizations, imposed quarantine, imposition of life-saving treatment when a patient has made an irrational refusal, treatment and prevention of suicide.
- ACOG asserts that whatever is legal is socially acceptable, and thus licensed professionals are obligated to provide such services. Acceptance of this flawed precept would require a physician to provide or facilitate each patient request for a legally available service, e.g., every Oregon physician would be required to assist a patient with a request for suicide.
- ACOG erroneously maintains that negative patient autonomy (the right to refuse a recommended treatment) and positive patient autonomy (the right to demand a treatment) are morally equivalent. It is a well-established and longstanding tenet of medicine that the patient’s right to refuse is nearly inviolable, but a patient’s right to demand a specific treatment is subject to physician discretion and veto. Were this not so, patients could demand unnecessary surgery, and they would not require prescriptions for antibiotics or narcotics. Society has supported such professional refusals of procedures or drugs the physician believes to be deleterious to the patient based on patient beneficience [beneficence?]. Similarly, society has until recently supported physician refusal based on his or her right of conscience.
- ACOG assumes that matters of conscience for the professional are matters of personal opinion rather than matters of divine or ecclesiastical authority. For a physician to acquiesce to parental refusal of analgesics for a suffering child is not a personal opinion. It would be a violation of both the basic tenets of medicine and the divine obligation of compassion.
- ACOG states that a prima facie value can and should be overridden in the interest of other moral obligations that outweigh it, but they are unwilling to grant that trumping weight to moral obligations with which they disagree.
Some individuals of faith and a few faith-based organizations have strongly objected to ACOG’s Opinion #385. In March, 2008 ACOG released a statement saying because of “uncertain and mixed interpretations” their Ethics Committee would hold a special meeting to reevaluate its position.
It has been assumed for centuries that healthcare professionals are moral agents who have the right to refuse to provide requested services that conflict with their religious beliefs. This assumption is being challenged. This ancient right should be defended by all of society, and it must be defended by people of faith.
 Thomas Percival’s Medical Ethics, 1803; American Medical Association’s first “Code of Ethics,” 1846
 Allen Verhey and Stephen E. Lammers, eds. Theological Voices in Medical Ethics. Grand Rapids, MI: Edrdmans, 1993
 Rights of Man, 1791
 “The rights of conscience we never submitted, we could not submit. We are answerable for them to our God.” Notes on Virginia,Q.XVII, 1782. “No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority.” Speech to New London Methodists, 1809
 “The Civil Rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, nor on any pretext infringed. No state shall violate the equal rights of conscience or the freedom of the press, or the trial by jury in criminal cases.” First draft, 1 June 1789
 “Congress shall make no law respecting an establishment of religion, or prohibit the free exercise thereof.” Final draft, September 1789
 e.g., end-of-life care (stopping ventilator support, dialysis, feeding tubes), prisoner interrogation, capital punishment, genetics, research (embryonic stem cells, cloning), writing or dispensing lethal prescriptions (Oregon), oral contraceptives (especially the “morning after pill”), and more
 American Medical Association: “…neither physician, hospital, nor hospital personnel shall be required to perform any act violative of personally held moral principles. In these circumstances, good medical practice requires only that the professional withdraw from the case, so long as the withdrawing is consistent with good medical practice.” H-5.995 Abortion
 The Health Services, Medicare and Medicaid Acts all include protections for physicians unwilling to do abortions or sterilizations.
 Forth-five states have right of conscience statutes.
 European Convention on Human Rights, Article 9
 World Medical Association’s Declaration of Geneva, 1948 & 1968: “I will practice my profession with conscience and dignity; the health of my patient will be my first consideration”. The World Health Organization’s Considerations for Formulating Reproductive Health Laws guarantees the right of conscience based on religious or philosophical beliefs.
 Addressing issues of moral complicity: When, where, why and other questions. Dignity newsletter of the Center for Bioethics and Human Dignity, Spring 2003;9(2):1,5. Available online at http://www.cbhd.org/resources/bioethics/orr 2003-05-23
 E.g., private sectarian hospitals receiving state or federal funds must make operating rooms available for abortion procedures (Alaska); physician group sued for discrimination after refusing to provide assisted reproductive services to a lesbian woman (California); mandate that pharmacists dispense “morning after pill” (Illinois)
 New England Journal of Medicine 2005;352(24):2471-3
 British Medical Journal 2006;332:294-7
 Edmund Pellegrino, chair of the President’s Council on Bioethics, has noted the irony of this provision since ACOG has gone to court to fight laws requiring abortion doctors to offer informed consent information to patients on the risks and alternatives to abortion [ACOG v Thornburg, 737 F.2d 283, 297-98 (3d Cir. 1984)]