In some regions of the world, hospital policy, negotiated with the health ministry and police, requires that a doctor who finds evidence of an unskilled abortion or abortion attempt should immediately inform police authorities and preserve the evidence. Elsewhere, religious leaders forbid male doctors from examining any part of a female patient’s body other than that being directly complained about. Can a doctor invoke a conscientious commitment to medically appropriate and timely diagnosis or care and refuse to comply with such directives?
We have become familiar with the opposite stance of conscientious objection: the conviction, commonly based on religion, that provision of, for example, contraception, contraceptive sterilisation, abortion, access to reproductive technology, and pain control by life-shortening means goes against a health-care provider’s ethical values. Indeed, objection is properly accommodated in law and ethics provided that objectors refer their patients to suitable and accessible providers who do not object.
Religion has no monopoly on conscience, however. History, both distant and recent, shows how health-care providers and others, driven by conscientious concerns, can defy laws and religious opposition to provide care to vulnerable, dependent populations. They might also defy the medical establishment. Pioneers of the birth control movement were not doctors, and were opposed by medical, state, and religious establishments. As long ago as 1797, Jeremy Bentham advocated means of birth control, and in the following century, John Stuart Mill was briefly imprisoned for distributing birth control handbills. Charles Bradlaugh and Annie Besant were similarly prosecuted, in 1877, for selling pamphlets about birth control.
Religious opposition fuelled prosecution of proponents of family planning well into the 20th century. In 1915, Margaret Sanger, an American nurse who worked in the ghettos of New York and espoused the cause of birth control, fled prosecution to the UK, where she met and motivated an English botanist, Marie Stopes. The momentum towards popular and political acceptance of family planning generated by these courageous pioneers, who defied the power of organised religion, conservative convention, and at first the medical establishment, rewarded their conscientious commitment. Nevertheless, until 1969, the Canadian Criminal Code penalised the spread of knowledge of contraceptive means as a crime against morality, and family planning initiatives remain under attack particularly from the Roman Catholic Church hierarchy.
An historic instance related to the similarly abhorred practice of abortion occurred in the UK, in 1938, after the Ministry of Health and the Home Office set up the Inter-Departmental (Birkett) Committee on Abortion to address “the reduction of maternal mortality and morbidity arising from this cause”. Aleck Bourne, a consultant obstetrician at St Mary’s Hospital, London, terminated the early pregnancy of a 14-year-old gang-rape victim and informed the Birkett Committee of the realities of conscientious abortion. He was subsequently prosecuted for criminal abortion at the Central Criminal Court in London, the Old Bailey, and the judgment resulting in his acquittal remains an influential landmark in Commonwealth jurisprudence establishing the legality of therapeutic abortion.
Sir Dugald Baird advanced abortion techniques in the less-pressured legal environment of Scotland, and Dorothea Kerslake pioneered vacuum aspiration abortion in Newcastle-upon-Tyne, strongly influencing a Canadian physician, Henry Morgentaler. Practising in Montreal, Morgentaler spoke out against the restrictive abortion law and practice in Canada, and felt conscientiously bound to assist the often desperate, disadvantaged women who then flocked to him for treatment. Not satisfying the demanding conditions of the Canadian Criminal Code, he was prosecuted, but at his trial, in 1973, a jury found him not guilty of unlawful abortion. However, in 1975, the Supreme Court upheld his conviction on the Quebec Court of Appeal’s exceptional reversal of the jury’s acquittal, and he was sentenced to 18 months’ imprisonment. After 10 months in jail, he was released for retrial after a Criminal Code amendment to prohibit any future appeal court reversal of a jury acquittal. At retrial, the Quebec jury again acquitted, without appeal.
On relocating his clinic to Ontario, Morgentaler was further prosecuted, in 1984, for conspiracy to perform unlawful abortion. The jury acquitted him, and when the Ontario Court of Appeal ordered his retrial, he appealed to the Supreme Court of Canada. Invoking provisions of the 1982 Canadian Charter of Rights and Freedoms, the Supreme Court’s five-to-two judicial majority accepted his claim that the Criminal Code abortion restrictions violated women’s human rights, and declared them unconstitutional and void. The Chief Justice of Canada ruled that “[f]orcing a woman, by threat of criminal sanction, to carry a fetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus a violation of security of the person”. In finding this violation to exceed what is justifiable in a free and democratic society, the Supreme Court vindicated Morgentaler’s conscientious objection to compliance with the discredited law. Abortion is now regulated as any other medical procedure in Canada, without specific criminal liability.
Conscientious commitment to ethical practice and the wellbeing of patients continues to inspire some physicians’ non-compliance with religious practices required by some hospitals. For instance, they treat patients immediately when spontaneous abortion is threatened, even though some Catholic hospitals’ ethics committees prohibit uterine aspiration while fetal heart tones are present, requiring physicians to delay urgent care and risk patients’ infection and heavy blood loss, or to transport patients to non-Catholic care facilities.
Many other instances can be cited over time and place. Physicians in South Africa would admit and treat patients in an emergency notwithstanding prohibitions of the apartheid laws. Physicians in Pakistan have declined to take part in amputations and corporal punishment of offenders authorised by the enactment of strict Sharia law. Practitioners of in-vitro fertilisation in Italy have decided not to transfer grossly abnormal embryos, although Italian legislation requires transfer of all embryos created in vitro and prohibits cryopreservation.
Physicians’ compliance in the Netherlands with the requests of terminally ill patients for pain relief by administration of fatal doses of drugs has come to be accepted by the national courts, legislature, medical profession, and law enforcement agencies. Nevertheless, it remains contentious. Popular opinion is divided in the USA over the activities of Jack Kevorkian, who assisted patients’ suicide and was recently released from imprisonment for second degree murder. Similarly, medical and legal opinion in the UK is still divided over the 1957 acquittal of murder of John Bodkin Adams. He gave increasingly high doses of morphine to his patients to relieve their pain, knowing that the drug, on reaching toxic concentrations, was likely to precipitate death. Several patients had transferred their care to him for his pain-control reputation, and left him generous bequests in their wills. The prosecution alleged that he had deliberately killed patients for mercenary reasons. His defence was that his motivation was only to control pain effectively when others would not, perhaps for fear of prosecution.
The judge at the Lewes Assizes, who went on, as Lord Devlin, to become a leading English jurist of his age, instructed the jury that deliberately shortening life constitutes murder. However, he added: “that does not mean that a doctor who is aiding the sick and the dying has to calculate in minutes, or even in hours, and perhaps not in days or weeks, the effect upon a patient’s life of the medicines which he administers or else be in peril of a charge of murder…he is entitled to do all that is proper and
necessary to relieve pain and suffering, even if the measures he takes may incidentally shorten life.” He summarised that one would not say that the doctor caused the death, but that death was caused by the condition that justified the treatment. This clarification of the law, which perhaps influenced the jury to acquit, is now well accepted.
Conscientiously committed practitioners often need courage to act against prevailing legal, religious, and even medical orthodoxy, following the honourable medical ethic of placing patients’ interests above their own.
Further reading: Cook et al., 2003 Cook RJ, Dickens BM, Fathalla MF. Reproductive health and human rights: integrating medicine, ethics, and law. Oxford: Oxford University Press, 2003.