Objection based on ‘genuine’ and ‘deep’ beliefs

Two proponents of this position are Meyers and Woods.4 ,7 They begin with the assumption that the antiabortion beliefs in question are inherently intelligible and respectable. The belief that abortion is morally wrong, the belief that the fetus has the full moral status of a human being, or the belief that a normal pregnancy is not a disease and abortion is not a medical treatment—all of these beliefs are intelligible and respectable. So we are not talking about doctors with beliefs that are unintelligible (they object to working on Friday 13th) or based on unjustified biases.

The question is whether these beliefs are genuinely held, and run deep in the applicant's life. But how is the proposed tribunal meant to determine this? In the same way that a well documented, long-standing church-going Quaker is an easy case for the military tribunal, it might seem that a church-going Catholic would be an easy case for the medical tribunal. However, while pacifism is essential to being a Quaker, the opposition to abortion is not so essential to being a Catholic. Evidence suggests that most UK Catholics do not oppose abortion, even when the Church is officially against it.8 So even this putatively easy case would require further discussion.

Perhaps the doctor could adduce evidence of her attendance at some sort of antiabortion protest, either on the streets on in a more academic venue. Perhaps she might have engaged in debate on the subject in the press or in academic journals. But it is surely possible to have a genuine and deep moral opposition to abortion without public protest or academic engagement. Perhaps one is simply not extroverted or confrontational as a personality; perhaps one is more interested in various hobbies than in spending one’s free time at the barricades.

One could take a hard line, as Brownlee9 seems to, and say that any putative conscientious objection that does not lead to public engagement and activism is not worth accommodating, for it reveals a special kind of double standard: the objector would refrain from complicity with what she considers wrong, but would seem to tolerate others performing the act. But this seems unfairly demanding, especially when one considers how small a part of the GP's job involves authorising abortions. And chances are that any putative objector has demonstrated a general moral seriousness that would otherwise greatly benefit the profession and her patients.

There is also another important reason why an objecting doctor might not engage in protest: she might see it as pointless. The striking fact about the UK is that there is no real political debate about abortion. Since the Act became law in 1967, it has been tweaked but never seriously challenged in Parliament or in the press. In many states in the USA, despite Roe v. Wade (1973), there is intense political debate, and the two sides are much more closely balanced, so it is much clearer that there is a cause worth fighting for. In Britain, it is therefore understandable that a British doctor would opt for a quiet but deep refusal of complicity. This is not to say that the moral beliefs in question are private and incommunicable—the objector is only too willing to discuss her views with those who come and ask her advice, either formally or informally.

Of course, the UK pro-choice consensus might be taken as increasing the burden of proof on the doctor who would refuse to give the patient what they can lawfully expect. The burden of proof would be increased further by the fact that British doctors are mostly trained in publicly-subsidised universities and hospitals. In both cases I would agree with respect to the vast majority of NHS clinical services, where health-related and resource-constraint criteria should fully determine provision. Non-emergency abortion is a unique kind of service, however, because of its essential moral contentiousness and complexity. And this reference to proof takes us away from the ‘genuineness’ criterion and towards the ‘reasonableness’ criterion, which I consider below. For the moment, however, I suggest that there might be a real problem for the tribunal to reliably establish the genuineness and depth of a politically inactive applicant.

Objection based on ‘reasonable’ beliefs

The main proponent here is Card.1 ,10 In this case the tribunal's aim would be to distinguish those applicants with inherently reasonable (ie, intelligible and respectable) beliefs from those applicants with unreasonable beliefs—for example, superstitious or racist—without enquiring into the actual place that such beliefs hold in the applicant's life. An issue of abortion happens to be one where opposing beliefs are widely taken to be equally reasonable. The word ‘reasonable’ admits of different degrees, however. In the most extreme, it could mean that the reasonableness of the objector's belief would have to result in the tribunal being persuaded—but Card rightly rejects this as too stringent.

For Kantymir and McLeod,6 the objector would have to show ‘that what grounds the objection is as likely to be true as what grounds the standard of care for patients’. But this language of truth, and greater likelihood of truth, is most at home in the empirical sciences; it cannot be so directly applied to moral enquiry and disagreement in cases such as these, where the objector holds a passionate commitment to a moral position. An astronomer might conclude that it was more likely to be true, on the basis of evidence, that there was once water on Mars: the conclusion is essentially tentative, and open to counter-evidence. The objector's strong moral belief, that abortion is wrong, is not similarly tentative and is not vulnerable to counter-evidence because all the possible evidence is already in (I will return to this in a moment). In addition, Kantymir and McLeod speak of what grounds the standard of care for patients—the objecting doctor would say that the abortion is morally bad not just in itself, but also bad for the patient, and this would be part of their intelligible and respectable belief.

There are two other problems with Card's reasonability view. First, since this version is about the beliefs themselves rather than the applicant's relationship to those beliefs, then the tribunal experience would become essentially no more than a memory test, to see if the applicant can cram and regurgitate one of the many ‘reasonable’ arguments. Card would presumably respond by requiring the tribunal to challenge the objector. In practice, however, debates about abortion tend to founder quickly on dogmatic foundational stances with only intuitive authority: for example, it is very hard to ‘prove’ what sort of moral status the fetus has. (There are of course other loci of disagreement in the abortion debate, mostly involving similarly unprovable claims on both sides.) So this would be similar to the Quaker being bullied with an unanswerable question. Moreover, there is the same problem as with the ‘genuineness’ criterion: an intellectual debate on the details of the applicant's antiabortion position would favour those GPs who were articulate and combative. Surely it is too much of a burden to ask the GP, on top of her existing professional commitments, to prepare for a test on material that remains so complex and contentious even among professional philosophers. (Marsh5 makes this point as one horn of his dilemma.) Many GPs, just like many ordinary people, have an unreflective opposition to abortion as just obviously wrong because the fetus is ‘obviously’ a child. If pressed for further reasons for thinking this, they will say that the ordinary discourse among happily pregnant women is of a ‘baby’ inside them; and that mothers tell their children ‘when you were inside me, you were only this big’. That hardly constitutes ‘proof’, but it might be the best that the objector can do.

Second, one problem with the abortion debate is that the arguments of both sides are so familiar. The issues are discussed in university applied ethics courses, and in high school debating clubs and the media. In many informal contexts, people tend to avoid discussing abortion precisely because of the likelihood of stalemate and shrill indignation spoiling an otherwise useful or pleasant relationship. Because the arguments of both sides are so familiar, it is again pointless to engage in debate. Some people, especially when they are young, may be genuinely perplexed about abortion, and may then seek out friends or authority figures to discuss the matter in greater depth—and the nature of the discussion will be one of the young person trying to decide what stance to take on the issue. Here the academic debates are important. Perhaps some GPs are genuinely unsure about their position. But in our scenario, the GP has already come to a position of opposing abortions, and there is no further need to ‘test’ it. The tribunal would almost certainly be unable to present any new evidence or arguments that would change her beliefs.

This is not to say that the objecting GP’s position is infallible or defiantly immutable; only that if and when the objecting GP does change her mind on abortion, it will be the result of some sort of startling experience (or series of experiences) that (suddenly or gradually) move her rather than persuade her. Similarly, a GP may have a general opposition to abortion, but then be genuinely perplexed when it comes to deciding what to do with her own accidental and inconvenient pregnancy. And of course the business of moving rather than persuading could go the other way: if and when a staunchly pro-choice GP comes to oppose abortion, I suggest that this change of mind would often not be the result of watching or participating in a debate, and that many of the more ingenious arguments are seized more as post hoc rationalisations.

So far I have been speaking of a GP with a secular moral opposition to abortion. The ‘reasonableness’ criterion becomes even more difficult to apply in the case of a GP whose moral beliefs ultimately flow from a foundational set of religious beliefs. Here the tribunal would have even less point because of the notorious difficulty of justifying religious belief to a non-believer, and it would be too much to expect tribunal members to be theologically educated.

To conclude, any objecting GP could understandably believe an interrogation by a tribunal to be a pointless exercise. And if that is the case, the exchange at the tribunal would descend into a bureaucratic formality that is demeaning to the individuals and to the serious positions on the complex debate.