The Market View

Ancell and Sinnott-Armstrong’s first move is to argue that physicians possess wide freedoms to determine the scope of their medical practice and therefore they have the freedom to lodge some conscientious objections. They make this argument by contrasting two physicians. Physician A is an obstetrician-gynaecologist who thinks women should be entitled to abortion access but does not perform this procedure even though she possesses the requisite training because she wants to avoid the risks and costs of doing so (eg, harassment, physical violence and social stigma from the public and other medical colleagues). By contrast, physician B is an obstetrician-gynaecologist who thinks abortion is morally wrong because it is equivalent to murder and therefore does not provide pregnancy termination services as part of her practice. Ancell and Sinnott-Armstrong8 conclude on the basis of these cases that:

One cannot prohibit Physician B’s conscientious objection while at the same time allowing Physician A to choose whether or not to take on the additional costs and risks involved in providing abortions….The fact that a physician declines to offer a particular service for moral or religious reasons rather than for self-interested reasons cannot make a difference to whether that physician is permitted to refrain from offering it. Therefore, many instances of conscientious objection must be allowed simply because they fall within the range of freedom that physicians have to define the scope of their practices… No blanket prohibition against conscientious objection in medicine is tenable.9-11 ,^iv

The second main step is to distinguish two different kinds of conscientious refusals and to argue that while many refusals may be discriminatory, it might be the case that these should be allowed as well. Ancell and Sinnott-Armstrong12 draw a distinction between (1) instances in which a provider refuses to provide a service due to the nature of the service in general (eg, abortion) and (2) instances in which a medical professional refuses a service to a particular patient due to a feature of that patient. Ancell and Sinnott-Armstrong make several important points in their discussion of this distinction. They maintain that while the line between type 1 and type 2 refusals may be hazy, we should keep these distinct in cases such as refusals to perform abortions:

If a physician objects to abortion solely because of the nature of the procedure (such as that, in that physician’s view, it involves killing an innocent person), then the fact that all abortion patients are women is irrelevant to this physician’s reasons for refusing to perform the procedure. This physician would refuse to perform an abortion on a male who somehow became pregnant (do not ask how). Because the gender of the patients is not the basis of the physician’s objection, this case would be considered type 1 rather than type 2.12

In this scenario, the refusal to perform abortion is a type 1 refusal and hence is not discriminatory; it is clearly allowable on Ancell and Sinnott-Armstrong’s view. What about discriminatory objections? They invoke the AMA Code of Medical Ethics prohibition on invidious discrimination, namely ‘… physicians who offer their services to the public may not decline to accept patients because of race, color, religion, national origin, sexual orientation, gender identity, or any other basis that would constitute invidious discrimination’,13-14 ^v  and determine that a case of invidious discrimination is one in which the medical practitioner refuses to provide a service to a particular patient on the basis of an unjustified negative attitude or judgment about a characteristic possessed by that patient. For Ancell and Sinnott-Armstrong, the refusal to provide Guadalupe Benitez intrauterine insemination due to her sexual orientation as an unmarried member of a same-sex couple is an instance of invidious discrimination on this definition.

The final step in their argument is to argue that even cases of invidious discrimination can and should be legally allowed in medicine; in their view, making these actions illegal is not always the best solution. To support this notion, Ancell and Sinnott-Armstrong present several predictable points such as the notion that objecting professionals would drag their feet and not best serve their patients if forced to engage in the objectionable activity, as well as the claim that patients would not trust providers they know disapprove of them and object to their request. Even though Ancell and Sinnott-Armstrong15 believe that cases such as the refusal of fertility services to Ms Benitez are unjust, they are not convinced that they ought to be legally prohibited if the right system is put into place to address this injustice. This leads directly to their Market View.

Their proposed system consists of publicly announcing that the provider or clinic in question refuses to perform certain procedures for a particular patient population, providing information in the form of a referral (even if this referral does not necessarily approve of this patient’s request) and paying costs that are brought on by the refusal. In Benitez’s case, she had to receive expensive fertility services through a clinic that did not accept her insurance after being refused by the in-network North Coast clinic. On Ancell and Sinnott-Armstrong’s account, this clinic (not the individual refusing physicians) would have to reconcile the additional expenses incurred by Ms Benitez. Ancell and Sinnott-Armstrong16 claim that the conditions for their system to allow even invidiously discriminatory conscience objections would create incentives to address discrimination:

This gives clinics a choice. One option would be for the clinic to hire sufficient staff who do not object to serving that population. Another option would be for the clinic to pay the extra costs for patients to go elsewhere. These extra costs would include not just the clinic bill but also any additional costs, including time and transportation to the other clinic. These costs can be high if patients have to go far away to get treatment. Either choice will increase the clinic’s expenses. Hiring extra staff and paying for these patients to go elsewhere both affect the clinic’s bottom line. However, although those expenses might be bad for the clinic, they are good for society. First, they are necessary to protect innocent and often disadvantaged patient groups. These expenses are costs of doing business fairly. Second, these financial pressures will motivate progress in the long run. Clinics can avoid these expenses simply by hiring physicians who treat all patients equally. As a result, those physicians will have a market advantage. They will have an easier time finding employment, and they will garner higher salaries. Over time, financial incentives will decrease the number of physicians who engage in invidious discrimination.

We have arrived, then, at Ancell and Sinnott-Armstrong’s Market View. Their position allows conscientious objections by medical providers—even invidiously discriminatory ones—since they base their view on the premise that providers have wide freedoms to determine the scope of their medical practice and they believe that the economic incentives created by their recommended system will ultimately decrease the number of discriminatory conscientious objections. According to Ancell and Sinnott-Armstrong, their view based on market incentives preserves provider freedom while also protecting patient rights and thereby represents an attractive way to address the dilemma of conscientious objection in medicine.

Analysis of the Market View

This view is interesting. For one thing, it uses the freedom to determine the scope of one’s medical practice as its grounding notion for why we should grant some conscientious exemptions and not the importance of maintaining the medical professional’s moral integrity. Yet, as I shall argue, there are significant difficulties with Ancell and Sinnott-Armstrong’s position. First, it is worth emphasising that their principle of paying the costs arising from the refusal applies only to cases of invidious discrimination.17 This is necessary as a correction to their framework for preserving medical providers’ freedom to determine the scope of their practices, even though it is jarring to realise that preserving the freedom in question leads to conscientious exemptions being extended simply because the patient is (for example) black, an atheist or a member of a non-Christian religion or identifies as a gay or transgendered person. But what about non-discriminatory objections? If a woman is refused a legal abortion because the provider is religiously opposed to this medical procedure, then she has no recourse—she is not entitled to know why her provider objects, nor is she entitled on their view to a referral or any compensation to offset the costs of having to travel and seek out another provider to perform the procedure. Ancell and Sinnott-Armstrong’s argument is a defence of the status quo in the USA: patients bear the costs of conscientious objection, and practitioners maintain their monopolistic privilege to offer the lion’s share of medical services—and to perform only those they wish to perform for only the individuals they choose. This is an unacceptable state of affairs all the way round, for it allows providers to abuse their powers of access to the medical system and does not respect their patients since they are not told why they are refused. Reasons are the normative currency that pay the debt of respect we owe to one another when we interact with others in the public sphere.^vi

In an article that repeatedly discusses the freedom to determine the scope of one’s practice, the question of what employment practices ought to be made illegal and the utilisation of market incentives and disincentives, it is worth highlighting that Ancell and Sinnott-Armstrong never even acknowledge the monopolistic privilege possessed by US medical providers. Given that their analysis allows even invidiously discriminatory objections to be accommodated, are there any limits on conscientious objection on this view? They explicitly recognise one by stating that a male gynaecologist cannot refuse to treat women due to a religious opposition to intimately examining members of the opposite sex.18 ,^vii On their account, such an individual should not become a gynaecologist. The reason is that ‘[c]ertain services are so essential to the practice of medicine, or to the practice of a particular specialty, that offering them is never within a physician’s discretion’.19 I wonder: is performing a dilation and curettage (D&C) essential to the specialty of obstetrics and gynaecology? Ancell and Sinnott-Armstrong blithely approve of conscientious refusals to provide abortion in the USA, but the question posed is not touched by their analysis. I would be surprised if one could plausibly maintain that performing D&Cs is not essential to this specialty; learning about, observing and performing a D&C is reasonably considered to be essential to obstetrics and gynaecology since this procedure is used to terminate a pregnancy and used to address a variety of women’s health issues such as endometriosis and the removal of uterine fibroids and polyps. Their silence on this matter is deafening, since D&Cs are one method used to perform an abortion—a procedure to which a practitioner can conscientiously object on the Market View—yet are essential to the specialty and so on Ancell and Sinnott-Armstrong’s view not within the discretion of the provider.

On a related note, how does the Market View assess the case of an obstetrician-gynaecologist who refuses to dispense emergency contraception (EC) because she believes this is an abortifacient and therefore results in the immoral killing of human life? I am imagining this case as a universal (type 1) objection to the practice of dispensing EC itself. Such a case would once again in all likelihood be granted an exemption on Ancell and Sinnott-Armstrong’s position. This is unacceptable, however, since such an objection is not consonant with relevant empirical data: EC’s main mechanism of action does not operate via postfertilisation mechanisms but instead consists in preventing ovulation and hence avoiding fertilisation altogether,20 and a conscience objection premised on mistaken clinical facts does not deserve an accommodation.21 It is certainly reasonable to ask healthcare professionals to conduct their medical practice based on empirically sound data. To get a clear sense of how the world would look if the Market View was implemented, imagine the present situation in the USA regarding women’s access to abortion or hormonal birth control, and then allow that objecting physicians can transparently engage in discrimination (contrary to AMA policy) against women of colour, gay or unmarried women or women who have not received written, notarised permission for the health services in question from their husbands. This is not an inspiring vision, nor is Ancell and Sinnott-Armstrong’s an inspiring view.

Ancell and Sinnott-Armstrong’s title trumpets their message: ‘How to Allow Conscientious Objection in Medicine While Protecting Patient Rights’. I must ask: patients’ rights to what? Perhaps they would say the rights in question are the right to be given compassionate care by a provider that the patient trusts to the utmost degree. It is reasonable to think that patients would like these things. But given that the majority of conscientious objections arguably relate to women’s reproductive services, these are not the rights in question. This debate concerns the freedom of medical practitioners to act in accord with their conscience and the right of patients to access legally available, medically indicated and safe clinical services. Women who are facing an unplanned pregnancy would like compassionate care from a trusted provider, but when seeking abortion services, what they need is a timely, safe and complete termination of the pregnancy. Ancell and Sinnott-Armstrong do not have anything substantive to say about how their view will work to ensure patients have access to the medical services to which they are entitled; their position allows virtually all conscientious refusals by placing blind faith in an ideology that ‘the market’ will take care of things.

The emptiness of this promise is exposed if we realise that abortion services are now offered in the USA via a market mechanism with providers in many local markets deciding not to offer terminations and recognise that access to abortion remains infamously difficult for American women. Ninety per cent of all US counties lacked an abortion clinic in 2014:22 this is the situation the free market has brought the USA and what Ancell and Sinnott-Armstrong’s position would preserve. Physicians should not be able to maintain their monopolistic privilege and abuse their powers of access to healthcare services, as long as the market allows. Ancell and Sinnott-Armstrong premise their argument on freedom of conscience manifested in the choice of scope of practice—yet if many opt out of providing essential services such as abortion provision, their argument may in time come to disfavour discriminatory or non-discriminatory conscientious objections. The market may not be able to bear such mass defections and hence an initial commitment to unfettered freedom of conscience may not support the broad privilege of conscientious objection that Ancell and Sinnott-Armstrong expect. It is ultimately an empirical question as to how much tolerance their position affords; a defender of conscientious objection could reasonably think that freedom of conscience is not really protected if its status is made dependent on the dynamics of the free market. As I have argued, reflecting on the USA as a country in which a market approach has been used suggests either that patients will experience a widespread lack of access to essential medical services or (in a more robust market) that a significant number of providers may not be able to exercise conscientious objection—contrary to Ancell and Sinnott-Armstrong’s assertions. It is puzzling how the Market View can claim to truly protect both patients’ rights to access medical services and providers’ privileges to lodge a conscientious refusal. Their title is at best facile, and at worst, utterly misleading.

The Market View aims to impress on us the broad scope of freedom possessed by medical providers to define the scope of their practice; there are very few limits on this freedom in their view.^viii If a provider can refrain from a service for any self-interested reason, then could an emergency department (ED) physician acceptably choose to treat every third patient? Ancell and Sinnott-Armstrong would almost surely attempt to reply to this objection as they did with regard to the example of the male gynaecologist: some services are so essential to the practice of medicine that the physician has no say about offering them. But why is this the case? Physicians have a broad freedom to define the scope of their practice according to Ancell and Sinnott-Armstrong, and they have given us no argument for why an ED physician cannot acceptably object in this way. If this is not clear, imagine that this ED doctor practices in an area with a predominantly black population and every third patient is white. Or the ED physician wants time to rest in between cases (a self-interested reason), so he treats only every third patient. As I imagined it initially, this case was not an instance of a discriminatory refusal—it just so happened that things turned out this way in an area predominantly occupied by African-Americans—but if the provider intentionally arranged things so that every third patient is white, and he only treated every third patient, this invidiously discriminatory refusal would still be acceptable on this view. The discriminatory version of the example is acceptably accommodated within the Market View since on Ancell and Sinnott-Armstrong’s view a provider lodging a non-discriminatory version of the ED example is entitled to an exemption. This position lacks even the most basic conditions for an acceptable account of the limits of conscientious objection since it fails to include a professional requirement to provide emergency care to patients.

I have focused a lot of my attention on several absurd implications of the Market View. I will conclude by reflecting at a principle-based level on the fundamental logic of this position, which I suspect is flawed. Ancell and Sinnott-Armstrong argue that whether: (A) the provider refuses based on non-moral or self-interested considerations versus (B) moral or religious reasons cannot make a difference as to whether the physician is permitted to refuse to offer the service in question; exempting case B follows from the fact that the behaviour in case A is allowable. Is this general idea sound? Consider the following case:

Real estate agent A: a real estate agent decides  upon being licenced that he will work in residential real estate versus commercial real estate since he believes he will make more money in residential real estate.

Real estate agent B: a real estate agent decides to be a residential real estate agent but refuses to sell a home to clients who are black or who are members of a same-sex couple based on his personal moral and religious beliefs.

Real estate agent A has the freedom to make choices about the scope of his career in the industry. Ancell and Sinnott-Armstrong maintain that this freedom to define the scope of one’s career based on non-moral (self-interested) reasons implies that real estate agent B can define the job-related activities in which he participates by engaging in conscientious objection. This is the structure of their main argument: the non-moral reason-based definition of career scope implies that one can engage in morally based invidiously discriminatory conscientious objection.

Yet cases A and B differ importantly. Real estate agent A has no particular responsibility to ensure that residential real estate clients’ rights to fair opportunity in housing are protected; he could instead elect to work as a commercial real estate agent serving corporations. However, once he has chosen his area of specialisation and is a working residential real estate agent, real estate agent B has explicitly adopted professional obligations to all clients vis a vis their rights to fair opportunity in housing.  Analogously, in Ancell and Sinnott-Armstrong’s initial medical example, physician B as an obstetrician-gynaecologist has adopted particular professional obligations to adult women in need of obstetric and gynaecological services. This provider has a professional obligation to give primacy to patient well-being,23 and therefore, must discharge this fiduciary duty by ensuring that the standard of care is met for women in need of pregnancy termination services. Ancell and Sinnott-Armstrong’s view misses this difference between A and B and therefore fails to properly respect the professional obligations of medical providers.

This view encourages physicians to do what is best for themselves and their medical practice and therefore gives primacy to economic and business considerations, not to patient well-being. Preserving medical providers’ freedom to choose—the scope of their practice, the procedures to which they conscientiously object and the patient populations they wish to serve—looks suspiciously from patients’ perspective like the freedom to lose. For the reasons I have offered, a free market argument to determine the proper scope of conscience objections in medicine has poor prospects. Thoughtful commentators who wish to block accommodating such discriminatory objections will instead have to envisage reason-giving positions that explicitly assess the reasons underlying conscientious objections. Ancell and Sinnott-Armstrong’s theory is a regressive view that trades a professional emphasis on physicians’ well-being in exchange for hollow freedoms for patients.^xi