CO as dishonourable disobedience
As shown above, CO in reproductive healthcare is largely unworkable and inappropriate, and arguably unethical and unprofessional as well. As a ‘‘refusal to treat,’’ CO should more aptly be called dishonourable disobedience, because it violates women’s fundamental right to lawful healthcare and places the entire burden of consequences, including risks to health and life, on the shoulders of women.
The accommodation of CO in reproductive healthcare is actually surprising. Why should a doctor’s private beliefs trump the medical needs of an individual? No other sector of medicine or other kind of service delivery would allow a service refusal with so little resistance. Perhaps it arises from society’s reluctance to allow women the freedom to make their own reproductive decisions, and the perception that women need guidance or even some moral persuasion to carry an unwanted pregnancy to term.
However, most women have already decided to have an abortion before they speak to any healthcare professional. They go to a doctor only because abortion is a medical service they need but cannot perform themselves in a safe way. The reliance on a doctor to protect one’s life and health makes any right to CO in medicine unethical — and down-right dangerous in light of the fact that women often resort to unsafe do-it-yourself abortions when they are unable to access medical care. If peoples’ right to life means anything, they must be able to access necessary healthcare, which should supersede the conscience rights of others.
CO gives a person a pretext not to do their job, even though they were specifically hired to do that job and are being paid for it. Indeed, if you can opt out of part of your work without being punished, why wouldn’t you? CO is a shield to protect employees from liability for their own negligence, while placing unfair burdens on colleagues and employers. They are like employees who arrive late for work every day, forcing more dependable employees to cover for them. The unfair effects of allowing CO can be seen at the University of Medicine and Dentistry of New Jersey, which had to hire additional staff to make up for the refusal by 12 nurses to have any contact whatsoever with patients having an abortion — even routine tasks like taking a temperature, filling out paperwork, or walking a patient to the door after recovery. These nurses, who had essentially abandoned their professional duties and discriminated against patients, even filed a lawsuit against the hospital for ‘‘forcing’’ them to assist in abortion care against their religious objections (Giambusso, 2011).
The principle of public accommodation requires the discounting of individual conscience within a profession. Everyone’s conscience is different and cannot be coerced, which is why a free democratic society places a high value on tolerance and equal respect for all citizens. However, if individuals are permitted to exercise their conscience when serving the public, it gives social sanction to the practice of intolerance. CO invites discrimination against people needing the services being refused, and infringes their freedom of conscience. This is why the American Civil Rights Act prohibited discrimination by facilities that serve the general public — a racist waiter working in a restaurant cannot refuse service to a black person. As one writer stated about an Iowabill that would have allowed any business or organization to refuse to recognize gay marriage: ‘‘It uses a word we associate with compassion — conscience — for the sole purpose of discriminating.’’ (Basu, 2011) Similarly, CO in medicine contravenes the ethical obligation to serve the public, which is why it is dishonourable disobedience.
A healthcare provider’s personal right of conscience can and should be limited to protect the rights of others, including their safety and health. As stated in the United Nations’ International Covenant on Civil and Political Rights, Article18(3) (Office of the United Nations High Commissioner for Human Rights, 1976):
Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety order, health or morals, or the fundamental rights and freedoms of others.
CO violates medical ethics because doctors agree to assume professional obligations to patients when they join the profession. Patients cannot obtain services elsewhere because doctors enjoy a legal monopoly on provision of medical services, with their profession and medical knowledge fulfilling a public trust. Doctors are bound by laws on negligence and by ‘‘fiduciary duty’’ — a legal or ethical relationship of confidence or trust between two or more parties (Based on British common law, 2014). When doctors cite CO as a reason to refuse healthcare to a patient, they renege on their professional and public duties and their legal responsibilities. As such, CO should require a greater sacrifice on the part of the refuser, including a willingness to resign their position or even to go to prison (Cannold, 2010)
CO also clashes with the recent revolution in healthcare in western countries, where a new paradigm of patient-centred care, together with evidence-based medicine and a commitment to prevention, has been accepted (Weitz and Berke and Berke Fogel, 2010). One such example is in the UK, with its new Patient Choice framework adopted by the National Health Service (Department of Health, 2013). When patients take a more proactive role in managing their own health and treatments, it leads to significantly better health outcomes. But CO reinforces the stereotype of the ‘‘all-knowing’’ doctor who dictates what is best for patients, with little regard for their individual needs or even the evidence. The exercise of CO becomes an excuse for the doctor to exert personal power over the patient by imposing their own views. In practical terms, time pressures and the unequal power dynamic between a patient and a doctor mean there may be no time or opportunity to negotiate, anyway. As Dr. Julie Cantor states: ‘‘There is little recourse when care is obstructed— patients have no notice, no process, and no advocate to whom they can turn.’’ (Cantor, 2009)
Most countries still enforce abortion laws that originated in the 18th and 19th centuries, reflecting the knowledge and social mores of those times. The spirit of those laws is still alive in countries where abortion is legal but access is restricted by political measures that have nothing to do with protecting women’s health, such as obligatory counseling, waiting periods, and doctors’ signatures to confirm the woman’s mental distress. Laws that accommodate CO are even more inappropriate for less developed countries. Anthropologist and bioethicist Debora Diniz points out that developing countries tend to have greater anti-choice sentiment, a less secular culture, more dominance by the Catholic Church, and less access to abortion because of fewer facilities and providers and poor healthcare infrastructure. Such factors led Diniz to conclude that ‘‘conscientious objection in developing countries should not be seen only as an issue of accommodation, but as a constitutional offense against the stability of the secular state.’’ (Diniz, 2010)
Source: Fiala C, Arthur JH. ‘‘Dishonourable disobedience’’ — Why refusal to treat in reproductive healthcare is not conscientious objection. Woman – Psychosom Gynaecol Obstet (2014), http://dx.doi.org/10.1016/j.woman.2014.03.001