bpas reproductive review, 14 July 2014
An article by Joyce Arthur and Christian Fiala arguing ‘Why We Need to Ban “Conscientious Objection” in Reproductive Health Care’ provoked much discussion. Here, Arthur and Fiala respond to their critics.
So-called ‘conscientious objection’ (CO) to contraception and abortion is a misnomer because it is actually an abuse of authority on the part of healthcare professionals who refuse to provide this care. We argue it is more correct to call CO ‘dishonourable disobedience’ to professional duties, ethical codes, and democratically decided laws.
In March 2014, the journal Woman – Psychosomatic Gynaecology and Obstetrics published our comprehensive article explaining why CO in reproductive healthcare is dishonourable disobedience. Our criticism of CO uniquely delved into the underlying premises of CO to show that it is fundamentally contradictory and unworkable. Our shorter follow-up article then criticised the acceptance of CO by secular medical and health organisations.
We received several critiques, one published in bpas Reproductive Review, another in RH Reality Check by Global Doctors for Choice, and a few informal criticisms relayed on listservs or online comments, and at a recent conference in Lisbon, Portugal, where we presented our ideas. We paraphrase these criticisms below – most of which we feel ignored or misunderstood our position – and follow with our response.
1. The individual’s right to hold and manifest religious or other personal beliefs is an essential human right. The ability to exercise conscience is fundamental to individual integrity.
We fully agree. But defending the right to freedom of conscience totally misses our key point – that CO in reproductive healthcare is not genuine CO. Refusal by a health care provider to treat a dependent patient is not an exercise of conscience, it is an imposition of one’s personal beliefs on a vulnerable person. It is a veto of a patient’s right to healthcare. It is an unjustified refusal to do the job one was hired and paid to do. It is an act of discrimination because reproductive healthcare is largely delivered to women.
CO in reproductive healthcare has nothing in common with the military CO from which it is derived – or more accurately, falsely appropriated from. Those who object to military service are ordinary citizens drafted into compulsory service, while healthcare professionals are in a privileged position of trust and authority – a position they chose and willingly trained for, with the full understanding that it entails duties to patients and an obligation to provide safe and necessary medical care. The specialty of Obstetrics/Gynecology in particular carries with it the obligation to help women with unplanned pregnancies.
Licensed medical professionals also enjoy a monopoly on healthcare, and people have no choice but to go to them for care. Despite this, healthcare professionals usually face no obligation to justify their refusals, rarely face any disciplinary measure, retain their positions and salaries, and often have their objection protected by law. They may also benefit in other ways, such as freeing up their time by offloading work burdens onto colleagues (while still being paid for ‘treating’ patients they refused), protecting their reputation by avoiding abortion stigma, and boosting their careers by performing more lucrative or prestigious activities instead. In contrast, military objectors must justify their stance to higher authorities, are often required to undergo a rigorous review process, and are always punished.
The alleged parallel in terms of refraining from killing is also turned upside down for CO in reproductive healthcare. Abortion and contraception preserve the health and lives of women, while those practicing CO in medicine put women’s health and lives at risk. There is no comparison between killing a living person in war and ending the development of a gestational sac, especially since prohibiting the latter directly endangers women’s lives.
2. Doctors should not be forced to do what they don’t want to do, and certainly no doctor should be forced to do an abortion if they are opposed. It is hard to see how laws designed to compel professionals to act against their conscience can be of benefit to anybody.
This is a specious argument, one that also reinforces abortion stigma by treating it differently from other forms of healthcare. We should not lend support to the anti-choice view that it’s a natural and expected thing to not want to do abortions.
When a person is paid to do a job, we don’t consider them ‘forced’ into doing it, even if they don’t like the job. Being forced implies having no choice or recompense, but workers apply and compete for jobs in order to earn money, with an understanding of the duties involved.
When you rush to the hospital for an emergency appendectomy, you don’t worry whether the surgeon is being ‘forced’ to do it. Even if the surgeon hates doing appendectomies, or dislikes you personally, you still fully expect the surgeon to perform your surgery in a professional manner. Likewise, you don’t worry if your plumber is being ‘forced’ to fix your pipes when you call, or if the cashier is being ‘forced’ to ring up your purchases when you go shopping.
It’s their job!
If a worker doesn’t believe in their job or objects to certain required tasks, they always have options, as do healthcare professionals:
1. In the first place, they should refrain from training for or accepting a job they will be unable to carry out for personal reasons. For example, a person should not train to be a pilot if they are afraid of flying and will refuse to take off.
2. They can quit and find another job, request a transfer to an area where the objected-to task is not required, or obtain training for something different that they won’t object to.
3. They can keep their job by making the considered decision to fully adhere to the job requirements despite their distaste or reluctance. (No job is ‘perfect,’ after all.)
4. They can refuse to do their job and submit to discipline by their employer, including the risk of demotion or termination.
Only Options 1 and 2 represent true conscientious objection, by the way.
3. We need to find a balance between the rights of women and the rights of health care professionals. It’s an issue of competing rights.
This argument has a false premise – that a patient’s need for basic medical care is morally equivalent to protecting a healthcare provider’s personal beliefs. The belief that women’s right to life and health ‘competes with’ or should be ‘balanced’ with doctors’ supposed right to refuse them care trivialises the health and lives of women. It assumes that women’s human rights are negotiable and dispensable as soon as someone disagrees with them. But why should the refusal to treat a woman who needs reproductive care be accepted, when the refusal to treat someone who is gay, black, or Muslim would be considered discrimination? Indeed, various attempts by governments and businesses in the U.S. to refuse services to gay people have failed for good reason, such as bakeries refusing to bake cakes for gay weddings. Like many other enterprises, medicine serves the public, which means healthcare workers have no right to refuse certain services to women.
In addition to the right to life and health, patients also have a right to conscience, as well as liberty, equal protection, privacy, dignity, and other basic rights. These may all be denied in addition when a doctor vetoes their healthcare. Even if the exercise of CO was true CO (which it isn’t), the sole right of freedom to conscience cannot possibly outweigh or be balanced against this long list of fundamental human rights. Ironically, Global Doctors for Choice and others recognize that human rights are ‘subject only to limitations necessary to protect the fundamental rights of others,’ but they fail to see that a full range of human rights need protection from the tyranny of CO.
There is no ‘balance’ when an authority figure is allowed to impose their beliefs on a powerless person who needs the services that only the person in power can provide. It’s the patient who pays the price and bears the burden of CO in reproductive healthcare, not the healthcare provider. Any denial of care is unacceptable because it inevitably creates at least some degree of harm to patients, ranging from inconvenience, humiliation, and psychological stress, to additional costs, delays in care, unwanted pregnancy, increased medical risks, and even death. The resulting real harms inflicted onto patients mean that CO in reproductive healthcare cannot be justified.
4. Conscientious objection too often is ill defined, unregulated, and inconsistently practiced. The harms and excesses of CO can be mitigated by regulating CO, educating healthcare professionals on their duties, and requiring healthcare systems to ensure that patients have access to legal services.
Many people support what we call ‘limited CO,’ which generally allows physicians to refuse to provide a particular medical service, but requires them to disclose their objection to patients, refer them to another provider who can deliver the service, impart accurate information on all options, and provide care in cases of emergency. Further, healthcare institutions are encouraged to have a system to ensure oversight of objectors and availability of non-objecting staff, so that all patients have access to services.
Our critics are simply repeating what they wish for, while failing to provide a single example where the practice of limited CO works consistently in real life. We describe in our journal paper why limited CO is a fundamental contradiction and consequently cannot work. Attempts to regulate CO are ignored and abused worldwide because the objectives of the requirements imposed on refusers are completely at odds with the refusers’ own objectives. The only reason healthcare workers invoke CO is to hinder their patients from a certain action, such as using contraception or having an abortion. But requirements such as the obligation to refer aim to negate the refuser’s actions so the patient can still obtain the needed treatment. That’s a contradiction – it’s giving with one hand while taking away with the other. Since the refuser’s personal beliefs have already been allowed to override patient care, how can we expect them to suddenly backtrack and compromise their beliefs?
Real life experience confirms that objecting healthcare workers often believe that giving a referral makes them ‘complicit,’ so they may refuse to do so. Some will also provide misinformation or treat the patient disrespectfully, or even let a woman die rather than give her a legal abortion, as happened in Ireland in 2012.
We don’t deny that some portion of objectors are probably more uninformed than ‘conscientious’ – or perhaps just ambivalent – and we agree that some could be persuaded to stop exercising CO for contraception and abortion. That would require education on the need for those services and why women request them, exposure to patients requesting the services, knowledge of the negative effects of CO on patients, and a clear understanding of the fiduciary duty to patients.
Nevertheless, it must be recognised that a significant proportion of objectors, perhaps even a majority, will never agree to abide by restrictions on CO – particularly those who believe that abortion is murder. Limited CO is therefore seriously inadequate to mitigate the harms of CO. Moreover, it places extra burdens on healthcare systems and non-objecting colleagues, burdens they should not have to shoulder. It is inappropriate for healthcare systems to spend resources to help employees shirk their duties, deny legitimate care to patients, and transfer their workload to colleagues.
5. CO is supported by professional medical groups and international human rights and health organisations.
It’s true that many medical organizations have policies or codes that attempt to limit or regulate CO in the ways we mentioned above, such as FIGO, the WHO, the ACOG, the AAFP, and others. The United Nations asks states to ‘ensure that conscientious objection exemptions are well-defined in scope and well-regulated in use and that referrals and alternative services are available in cases where the objection is raised.’ Global Doctors for Choice (page S53) has made policy recommendations to accommodate objectors, such as standardizing a definition of CO, developing eligibility criteria for objectors, registering objectors, and defining objector obligations to refer, give accurate information, and provide emergency treatment.
In other words, these organisations recognise the inherent challenges in administering CO and its harms to patients, yet permit them to occur in the mistaken belief that they can be mitigated to an acceptable extent. Part of the problem is that these groups have accepted the dishonest use of the term ‘conscientious objection’ by religious and anti-choice groups who wish to deny women’s right to health and life. Secular and pro-choice medical organizations should have no part in this. In fact, tolerance of CO by these groups often directly contradicts other key parts of their policies and ethical codes, such as clauses instructing doctors to do no harm, provide care in their patients’ best interests, and practice evidence-based medicine.
Medical and human rights organisations should instead be at the forefront of exposing the harms of CO and working to reduce and prohibit it. This should involve implementing mechanisms to prevent CO by screening out objectors from entry into training programs or disciplines that involve reproductive health, including family medicine and the obstetrics-gynecology specialty. Enforcement also needs to include punishment for objectors.
6. ‘Health-care institutions have an obligation to provide all components of care and to define the limits of refusal… but we disagree about whether that obligation rests primarily at the practitioner or the institutional level.’
This criticism is a direct quote from Global Doctors for Choice in response to our follow-up article. Note the two contradictory statements that sit side-by-side in the first part of the sentence. An obligation to provide ‘all components of care’ must obviously preclude the refusal of care.
We’re not sure why Global Doctors for Choice thinks we disagree that the obligation to provide all components of care rests primarily with healthcare institutions (and the state and civil society). We only disagree on what those specific obligations should be. Our journal paper has various suggestions on what these institutions should do to ensure comprehensive reproductive care without barriers or stigma – such as regulating public health systems to guarantee abortion provision, providing financial aid to hospitals to recruit abortion providers, providing compulsory training in contraception provision and abortion techniques at medical schools, public education to reduce abortion stigma, and other initiatives.
Obviously, some responsibility always rests with individual healthcare workers, who need to fulfill their duty to patients, follow medical protocols, adhere to codes of ethics, and so on. But monitoring and enforcement needs to be done at the institutional level – by hospitals, government health authorities or departments, and medical organizations. For example, if objectors are allowed to continue objecting, they should be required to justify each refusal to a Board or committee, as well as accept financial liability and discipline for each refusal, including the risk of being transferred, demoted, or terminated.
7. Reproductive healthcare is not the only area of medicine affected by CO. End-of-life care and treatments involving stem-cell therapies are also areas where CO has been invoked.
Our paper focused on abortion and contraception because these two services are both essential and common, unlike the first two examples given in the criticism. Together, contraception and abortion comprise the vast majority of healthcare services objected to.
There are some valid cases where a healthcare professional may conscientiously refuse a requested legal treatment, but this should be done in the context of honoring their professional obligations and medical ethics. Doctors can refuse treatment on the principle of ‘beneficence’ or ‘non-maleficence’ to ensure the patient is helped or at least not harmed. This only applies in limited circumstances, such as a patient who requests a risky experimental treatment, or a mentally disturbed patient who wants an unnecessary procedure such as an amputation.
We also support refusal by healthcare professionals if they are asked to perform illegal or quasi-legal activities that injure people and violate their rights, such as torture or genital mutilation of children. However, these are not legitimate medical treatments and are not requested by the patient; therefore, they cannot be called CO.
8. Banning CO could have the inadvertent consequence of worsening access by hardening the opposition of those who might be incrementally persuaded to provide these services.
This is pure speculation with no evidence or examples to support it. But there is evidence to the contrary: Allowing CO significantly worsens access to legal medical services for women. Decades of this ‘social experiment’ have shown it to be a clear-cut failure. Wouldn’t it be worth trying another approach?
The real challenge in banning ‘dishonourable disobedience’ will not be from those who might be persuaded to provide reproductive health services, but from those who will never be persuaded. The anti-choice movement fights ferociously against any restriction on their claimed right to deny rights to others. But the fear of intimidation and ugly politics is not a good basis for continuing to allow patients’ rights to be violated. We need to stand up to the bullying from anti-choice activists, who aren’t as strong as they think they are. We can defeat them. Most of their claims are demonstrably false as well as oppressive. Their views are increasingly at odds with the world’s ever-stronger focus on securing equality and human rights for all, especially women. Our modern society owes no respect to views that deny basic life-saving healthcare to women.