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Reasons, reasonability and establishing conscientious objector status in medicine
  1. Robert F Card
  1. Correspondence to Dr Robert F Card, Department of Philosophy, 212 Campus Center, State University of New York, Oswego, University of Rochester Medical Center, Oswego, NY 13126, USA; robert.card{at}oswego.edu

Abstract

This paper builds upon previous work in which I argue that we should assess a provider's reasons for his or her objection before granting a conscientious exemption. For instance, if the medical professional's reasoned basis involves an empirical mistake, an accommodation is not warranted. This article poses and begins to address several deep questions about the workings of what I call a reason-giving view: What standard should we use to assess reasons? What policy should we adopt in order to evaluate the reasons offered by medical practitioners in support of their objections? I argue for a reasonability standard to perform the essential function of assessing reasons, and I offer considerations in support of a policy establishing conscientious objector status in medicine.

  • Conscientious Objection
  • Philosophy of Medicine
  • Political Philosophy
  • Public Policy

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Introduction

I think reasons matter. I have argued in previous work that if the reasoned basis upon which a medical professional lodges a conscientious objection involves an empirical mistake, an exemption is not warranted.1 To be clear, if the provider refuses to dispense emergency contraception (EC) because she believes it is an abortifacient and this belief conflicts with the bulk of the relevant clinical evidence, this does not imply that such a practitioner may acceptably refer the patient to another willing provider. Instead, he or she is professionally obligated to provide the service in question. In my view, the requirement that we examine the reasons supporting a practitioner's objection is eminently plausible. The central issue in this debate is whether a professional who refuses a request is morally justified in doing so. Since conscientious objection essentially involves moral beliefs, and the validity of ethical beliefs (and acts based upon them) depends upon critically assessing their justificati oni, then a proper view on conscientious objection must examine the justificatory reasons of objecting providers. These are some of the main animating ideas behind my position, yet only recently has the literature begun to engage the issue of justification in conscientious objection.2 For the purposes of this paper, let us grant for the sake of argument that assessing providers' grounding reasons is of central importance. The next question that arises seems to be: how should we assess these reasons? There are actually several questions nestled in this query: What standard should we use, and what logical reasons do we have for adopting this standard? What policy should we adopt to evaluate these grounding reasons? The purpose of this paper is to examine these questions.

Why reasonability?

The standard I propose for assessing providers' objections is reasonability. I have spelled out how I operationalise this concept in a previous article, and the factors I isolate are not intended to represent a set of necessary and sufficient conditions for granting an exemption.4 The notion of reasonability is applied to the intrinsic reasonability of the practitioner's beliefs by examining whether these are core, genuinely held beliefs and are consonant with relevant empirical data. This standard is also applied to extrinsic features by looking at the reasonability of granting an objection in a particular set of circumstances; the relevant factors are considered to have prima facie value and the balance of considerations may support an exemption in one case and not in another. These factors include the provision that the objection is not causing needless or unwarranted harm, is not discriminatory or fails to provide care in a time-sensitive or emergency situation. My position is what I call a reason-giving view: one on which a petitioner for a conscientious exemption must publicly state the reasons supporting her objection and allow these reasons to be evaluated. My reasonability view is simply a reason-giving view that uses reasonability as the standard for adjudicating which conscientious objections merit an accommodation. What reasons can be marshalled in support of using this standard?

First, a reasonability standard comports with the Rawlsian ideal of public reason. I view the challenge posed by conscientious objection in medicine as an instantiation of the philosophical and cultural question regarding the proper boundaries of personal beliefs in the public sphere. John Rawls famously wrestles with the problem of toleration of different beliefs, understood as follows: if we assume that persistent and deep disagreement exists among citizens regarding matters of value, how can we enforce a set of rules or laws that have proper authority over these individuals? The answer lies in an ideal of public reason—this ideal justifies a set of rules for the governance of society that warrant endorsement by all citizens, no matter their religious or cultural affiliation. Rawls5 provides a clear expression of the ideal of public reason in the following passage:This ideal is that citizens are to conduct their public political discussions of constitutional essentials and matters of basic justice within the framework of what each sincerely regards as a reasonable political conception of justice, a conception that expresses political values that others as free and equal might also reasonably be expected reasonably to endorse.

The idea of public reason is contrasted with an individual's personal comprehensive conception of the good—the latter is founded upon the person's cultural or ethnic identity, religious beliefs and so on, while the former is derived from purely political ideas. This ideal applies to constitutional essentials and matters of basic justice—the latter “… relates to the basic structure of society and so would concern questions of basic economic and social justice and other things not covered by a constitution.”6 In this paper, I am talking about citizens acting in their public role as medical professionals, even if they are not serving as identified political actors who are explicitly advocating for their favoured position. I contend that access to reproductive healthcare is a matter of basic justice as Rawls conceives it; to cite just one example, the exercise of reproductive rights vis-à-vis access to abortion has been noted by the US Supreme Court to be an issue of social justice, and the effects of access to abortion have been identified by the court as having a positive effect on women's economic and social equality in this country.ii Since the USA has a healthcare system in which medical providers systematically deny women access to reproductive services via conscientious objection with little or no regulatory oversight, this conflicts with the idea of women as free and equal citizens and violates the ideal of public reason. On a Rawlsian approach, such providers must not solely appeal to their personal, comprehensive doctrine to justify such refusals of care within the institutional structure of medicine but instead must appeal to public reasons.iii

We learn that within the public sphere, when organising the basic institutional structure of society, we can rightly ask that individuals only act upon reasonable conceptions of the good. Minimally, this means that we can rule out (eg) racist or sexist beliefs as a proper basis for accommodations within the public sphere. Since we can find no good public reasons to justify organising institutions on the basis of rules founded upon the racial or gendered identities of the actors in those institutions—ones that are justifiable to all individuals to whom such rules would apply—we can simply refuse to use these considerations as organising principles for our societal institutions. My view rules out accommodating racist and sexist objections by adopting this Rawlsian ideal in its account of public reasonability; only objections based upon a reasonable conception of the good can warrant a conscientious exemption within the public institutional structure of medicine.

Second, since the reasonability view assesses the content of objectors' reasons, it can rule out conscientious objections based on discrimination in a principled manner. Let us understand discrimination as different treatment based on an arbitrary or irrelevant characteristic.7 A refusal to provide fertility services because of the colour of a woman's skin or because she is a member of a same-sex couple is not based on relevant considerations and thereby constitutes discrimination. Discriminatory reasons are not medically relevant and do not emanate from a reasonable conception of the good and so are not the proper subject of toleration. While I imagine most views would understandably want to rule out accommodating discriminatory objections, it is instructive to study how other views attempt to do so.

Mark Wicclair appears to defend a referral view: the provider's grounding reasons are not assessed but instead an objecting provider need only refer to another willing provider. Wicclair is not a reason-giver, saying that “… respect for moral integrity requires granting health care professionals considerable latitude concerning what is and what is not a valid reason for a conscience-based refusal to provide a particular good or service.”8 Wicclair makes clear that objectors' reasons will not be subject to assessment in any case unless the objection is (1) an example of invidious discrimination, (2) based on beliefs contrary to the goals of medicine or (3) based on demonstrably false clinical beliefs.9 I find this sort of view puzzling.

Wicclair's solution to dilemma caused by conscience is apparently to require that the objecting practitioner refer to a willing provider—yet he does not allow this solution if the refusal is based on reasons (1), (2) or (3). But then this sort of ‘refined’ referral becomes a reason-giving position. This is the case since the referral requirement is subordinated to the requirement that the objection be reasonable by not being founded upon beliefs that are discriminatory, contrary to the acknowledged goals of healthcare, or based on false clinical beliefs. As such, Wicclair rules out certain beliefs as an acceptable basis for accommodation based upon their content and thereby jettisons the fundamental commitments of his position.

To drive this point home, consider the following questions: According to what standard does Wicclair disallow some beliefs based upon their content? And what reasons are we given to believe this standard? Wicclair offers no answers to these questions, nor does he provide substantive consideration of these questions. Since he offers these three exceptions to his prohibition on assessing reasons without an overarching justification, these exceptions seem ad hoc and his view is fractured. The only way for Wicclair to achieve a unified account is to abandon his view and adopt a reason-giving requirement with its commitment to assess justifications at the foundation of his position. By contrast, I offer a view centred upon a reasonability standard that provides a cohesive account for why we must examine professionals' reasons before offering a conscientious exemption. The reasonability view, by requiring critical examination of providers' grounding reasons, rules out discrimination in a principled way.

Finally, the reasonability view does not set the bar too low for requiring professionals to serve patients. The only other major standard for assessing reasons that has been elaborated in a sustained manner is presented in Christopher Meyers and Robert Woods' defence of their genuineness view. The genuineness view states that a conscientious claim properly generates an exemption when it is based upon a core moral belief that is genuinely held by the provider, and the following passage reveals the crux of Meyers and Woods' position:10We stress … that the principle of autonomy demands that society respect healthcare professionals' genuine conscientious objection; we just seek confirmation that the conscientious objection is in fact genuine.

Meyers and Woods provide an informed discussion of the grounds for medical providers' professional obligations and suggest that a review board be established to ensure that the objection is sincerely held by the medical professional. Ultimately, though, priority is given to the values of tolerance and provider autonomy. In fact, the genuineness view seems to offer an exemption for any ‘legitimate’ conscientious refusal—that is, so long as the refusal is based on a core, genuinely held moral belief. Since this position aims to tolerate all sincerely held conscientious objections, any ethical belief seems to give rise to an accommodation on the genuineness view. A racist medical provider could receive a conscientious exemption on this view, assuming that these racist beliefs were genuinely held by this practitioner. This is a morally abhorrent result of this position; the genuineness view does not examine the reasons behind the objection and therefore is committed to a view that sets the bar too low with respect to granting conscientious exemptions.

Meyers and Woods may be able to successfully respond to this charge, however, by referring to several of the criteria they propose for use by their review board and suggesting that these point in the direction of requiring some form of evaluation for objectors. The criteria Meyers and Woods propose are the following:

  1. The applicant must have a sincere scruple-based objection to the procedure.

  2. That scruple must fit within an otherwise coherent system of moral or religious beliefs.

  3. The scruple must be consistent with other beliefs and actions with respect to, in particular, activities related to the taking of innocent life.

  4. The scruple must be a key component of the petitioner's moral or religious framework, such that its violation, and the concomitant violation of her autonomy, represents a greater moral harm than would the corresponding restriction the client's rights.

  5. All reasonable alternatives must be explored, for example, finding another pharmacist to provide the requested medications.

  6. Especially in those cases of public employment, and perhaps in all cases, when exemption is granted, some alternative form of public-benefiting professional service should be substituted.11

It is unclear how these criteria fit with the rest of their discussion, given their support as demonstrated in the quote cited above for a genuineness view. The inclusion of these criteria does not change my criticism, however, since it does not appear that their account assesses the substantive content of objectors' reasons to block requests for exemptions founded upon (eg) discrimination. At most, the criteria could be used to construct a standard requiring that an objector possess a coherent set of beliefs, yet a coherence standard is very permissive. After all, it seems that a racist could possess a coherent or internally consistent (but deeply mistaken) set of moral beliefs. Meyers and Woods may object that condition 3 blocks racist objections, but we could imagine an objector who only agrees to perform abortions for women of a certain race and not others, and this objection would seem to satisfy condition 3—the scruple would be in line with the racist's beliefs about the differential value of innocent human lives depending on one's race. Such a case seems outrageous given its racial component, but Meyers and Woods' criteria are not able to clearly block granting an accommodation on this basis. Condition 4 may be said to prevent extending an exemption to a racist objection by Meyers and Woods. This is not obviously true. I certainly do not want to underestimate the harms of racism, but I can imagine an individual whose racist beliefs are a key part of his moral or religious framework and who considers violating these beliefs to be deeply harmful, yet whose objection, given the prevalence of (non-racist) alternative service providers in the immediate area, causes only a small amount of harm to the patient in question. I am not personally endorsing such a conclusion, but on this understanding Meyers and Woods' condition 4 can seemingly allow racist conscientious refusals. In sum, a coherence standard is too weak to clearly avoid granting a conscientious exemption to a committed racist. We should instead adopt a standard of evaluation—such as the reasonability standard—that can clearly rule out accommodating discriminatory objections.

What policy should we use?

My policy proposal is to establish conscientious objector (CO) status in medicine.1 Those practitioners whose objections are deemed reasonable would receive an exemption from performing the service to which they object. My suggestion is that we create a medical conscientious objection review (MCOR) board that convenes to hear cases in which medical providers present and explain their objection.4 The job of the MCOR board is to assess medical practitioners' petitions and to decide whether or not to extend or deny a conscientious exemption to that provider. An MCOR board would not simply try to determine whether the medical provider's belief is genuine and that the provider is consistent by opposing all relevant forms of the ‘objectionable’ activity as does the military CO model in the USA, but would instead use the reasonability standard. If an exemption is granted, it will be instantiated as a condition on licensure. My initial proposal is that MCOR boards could be established, therefore, as a subsidiary of the licensing board for each state that is already in place to adjudicate claims of malpractice or other professional matters for medical providers. This suggestion does not multiply entities needlessly and in the main uses existing resources to establish the review process to create a viable board to hear providers' petitions for medical CO status. The MCOR board should consist of medical professionals such as physicians, nurses and pharmacists since there will be matters of empirical fact that need to be adjudicated to ensure that claims for conscientious exemptions are not based on clinically mistaken information. The board should have bioethicists trained in philosophy and religion as well as members trained in law to systematically examine the medical provider's reasoning and to ensure that if a petition was granted this would be within the bounds of the law. What are some reasons to think that following this suggestion would be a good idea?

First, the medical CO status policy proposal is a proactive measure. It determines whether a conscientious exemption is warranted in advance of the clinical encounter, and therefore seeks to minimise crises of conscience. By using a standard of reasonability to adjudicate petitions for an accommodation, it demonstrates concern for practitioners maintaining their integrity while also properly respecting professional responsibility and the importance of patients having access to legally available, medically indicated and safe medical services. My position properly respects professional ethical obligation within medicine just as military CO respects civic obligation, although these two contexts differ greatly.12

Second, the establishment of CO status in medicine allows a concrete outcome. If one conscientiously refuses to dispense EC but has not petitioned for CO status, or has done so but did not receive an exemption, then the scruples-based refusal is automatically deemed unreasonable in institutional terms. This result stands until the objector successfully petitions or successfully appeals a prior failed petition for CO status. The professional engaging in a refusal has not presented countervailing considerations that override his or her prima facie professional obligation to provide legally available, medically indicated and safe services requested by the patient, and therefore the provider's justification and objection have not been deemed reasonable. In such a case, punishment can be appropriate but is not required. Punishment could consist of a monetary fine or, with repeated such offenses, threats to the licensure of the medical professional in question. Punishment is unlikely for a first-time offense, except for cases of obstructionism such as a refusal to refer conjoined with (eg) a refusal to return a scrip for birth control to a patient.iv By allowing a concrete outcome, the medical practitioner knows where he or she stands with regard to providing or being exempted from providing a particular contested service. Notice that this is an improvement over a referral view since the fact that referrals worked well on previous occasions in a particular area says nothing necessarily about whether a referral will work well in the present case. By contrast, a provider whose petition for CO status is granted on the reasonability view can rely on this exemption from the contested service.

A final attractive feature of the CO status policy suggestion is that it is a public designation. Having one's petition granted to be a CO is a public status held and knowable to others. The status of providers ought to be discoverable by patients. As part of establishing CO status in medicine, we should create an online database accessible to patients so that they can be aware of any successful petitions for CO status by their physician and therefore avoid a refusal. This further allows for minimising crises of conscience since both providers and patients have the knowledge necessary to avoid a conscientious conflict as long as providers comply with seeking CO status. Practitioners have an incentive to seek CO status not only to bear public witness to their moral beliefs, but also to avoid the legal liability that results from engaging in conscientious refusal without first having successfully petitioned for medical CO status. Given the public knowledge of such CO status, this provides objecting practitioners with the means to quickly ensure they are referring their patient to a willing provider.

Conclusion

If I am right that we must assess reasons in relation to granting conscientious exemptions,13 then a reason-giving view gains a decisive advantage in this debate. I have proposed that if reasons matter in this way, we should adopt reasonability as the standard of evaluation and should establish CO status in medicine as the policy for assessing medical professionals' objections based on the considerations I have offered. At the very least, this discussion of the rationale for my reasonability view and its associated policy should spur others to propose alternative standards for evaluation and policies for granting conscientious exemptions, if the supposition of this paper is correct, as well as to question the status quo in healthcare in which no mechanism to assess objecting providers' reasons is even considered.

References

Footnotes

  • Acknowledgements A version of this paper was presented at the Brocher Foundation conference “The conscience of healthcare professionals in the time of biotechnologies: present and future of conscientious objection in medicine,” Hermance, Switzerland (June 2016). I thank my fellow participants for their thoughts during my session and throughout the very productive workshop. The ideas in this paper are developed in greater depth in “Justification and reasonability: conscientious exemptions in medicine” (book manuscript in progress).

  • Contributors RFC conceived the philosophical argument in this paper. RFC is solely responsible for its content.

  • Competing interests None declared.

  • Provenance and peer review Not commissioned; externally peer reviewed.

  • i In previous work, I argue why critical assessment of reasons resides at the heart of ethics and defend the claim that ethics is a critically reflective morality. For more, see Card 2004.3

  • ii In the majority opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, Justices O’ Connor, Kennedy and Souter reflect upon the decision in Roe v. Wade and state that “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives” [1992] 112 S.Ct. 2791, at 2809.

  • iii Rawls’ considered view is that one may introduce her comprehensive doctrine into the public sphere so long as “in due course public reasons are presented—reasons we can expect other citizens to reasonably endorse”. Nonetheless, the foundational justifications needed must be cast in terms of public reason, so this proviso does not materially change the essential requirement (Rawls7, page li).

  • iv A case occurred in the USA in which a Wisconsin pharmacist named Neil Noesen engaged in precisely such behaviour. He was found to have violated the standard of care and conditions were placed on his licence requiring that he provide advance notification to any future employer of his beliefs and their potential effect in the workplace. See https://www.aclu.org/news/wisconsin-court-upholds-discipline-pharmacist-who-refused-refill-birth-control-pill (accessed 1 June 2016) for more information.

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