Conscientious objection in clinical practice: notice, informed consent, referral, and emergency treatment.

• Author: Matheny Antommaria, Armand H.

Jane is a 15-year-old who became a patient of Dr. Jones several years ago. As she entered puberty, she no longer felt comfortable seeing the male pediatrician who had cared for her since birth. Jane and her mother chose Dr. Jones on a friend's recommendation after confirming that Dr. Jones was on their insurance plan. Jane is in good health and sees Dr. Jones periodically for attention deficit hyperactivity disorder for which she is treated with stimulants.

Jane and her boyfriend have been dating for several months. They are sexually active and use condoms for contraception. On Saturday night, during intercourse, their condom broke. On Monday morning at school, Jane shared her anxiety about becoming pregnant with her best friend Lily who told her about the "morning after pill." Jane frantically made an appointment with Dr. Jones for later that same day.

In the office, Jane explains her concerns to Dr. Jones who clarifies that post-coital contraception is effective if used within at least 72 hours. Dr. Jones, however, states that she believes it is morally equivalent to abortion and does not prescribe it. Jane asks where she can obtain a prescription and Dr. Jones replies that she cannot in good conscience refer either. Jane is very upset at what she perceives as Dr. Jones's lack of sympathy and unwillingness to help.

Jane texts Lily and they Google "emergency contraception." Using the Office of Population Research & Association of Reproductive Health Professionals' website http://ec.princeton.edu, (1) they find the address of the local Planned Parenthood clinic. (2) The clinician provides her with a prescription and offers her contraceptive counseling.

Jane's mother agrees that they should transfer to another practice. When calling to schedule a new patient appointment, Jane's mother confirms that all of the providers in the new office prescribe emergency contraception. While waiting the six weeks for the appointment, Jane runs out of her stimulant. Because it is a controlled substance, she does not have any refills and needs a new prescription.

With increasing cultural pluralism and patient autonomy, clinicians have begun to assert the ability to refuse to participate in certain activities they consider immoral, such as the prescription of post-coital contraception, based on claims of conscience. The first part of this article will examine the conceptual foundations of such claims, their scope and limits. Claims of conscience should fundamentally be understood as claims to maintain personal integrity. Contrary to assertions that they are attempts to impose one's moral or religious beliefs on others, they should be understood in terms of the providers' liberty rather than paternalistic or moralistic violations of the patients' liberty. Concern over improperly contributing to another's immoral action, however, remains an important ethical consideration. Analysis of material cooperation relies on relative distinctions, which themselves can become claims of conscience. Having outlined a theory of conscience, the article will then examine the potential limits to the appeal to conscience, particularly in the medical profession. As a liberty claim, claims to conscience can be constrained by harm to others. In health care, such claims can also be limited by providers' fiduciary obligations to patients. There is not, however, a clearly distinct professional ethic that can be used to distinguish professional claims from personal or private claims and medically indicated treatment from treatment that serves broader social goals. The second part of this article will use this conceptual structure to identify providers' responsibilities in various aspects of the patient-provider relationship illustrated by the above hypothetical case. The aspects include the initiation of the patient-provider relationship, disclosure of alternatives in the informed consent process, referral and treatment during the transition process, and emergency care. Such analysis, however, should consider alternatives within the broader health-care system that may diffuse individual conflicts.

1. CONCEPTUAL ISSUES

   1. Conscience

      While there are a variety of conceptions of conscience, the dominant contemporary analysis focuses on integrity. Martin Benjamin identifies three main views of conscience: an inner sell-validating sense of right and wrong; the internalization of parental and social norms; and an expression of integrity. (3) The first understanding of conscience, an inner sense of right and wrong, has difficulty accounting for the putative sell-sufficiency of claims of conscience. (4) If an act is right solely because it is endorsed by one's conscience, the dictates of conscience appear arbitrary and there is no way to resolve conflict between individuals whose consciences disagree. If, on the other hand, conscience recommends an action because it is right, there must be an independent source of rightness. The problem of justification also undermines the second view of conscience, the internalization of social norms. (5) Social norms only demand adherence if they can be independently justified. There are multiple examples of individuals with deformed consciences and social practices we now consider immoral.

      Instead of focusing on the objective or universal rightness of an action, the third conception of conscience focuses on the relationship between a course of action and one's basic ethical convictions. (6) Violating one's conscience is conceptualized as undermining one's integrity or wholeness and as resulting in guilt, shame, or loss of self-respect. (7) This third view allows one to both emphasize the importance of acting in accordance with one's conscience and acknowledge the fallibility of moral judgment. It is not contingent on specific religious beliefs and provides a reason to support others complying with their conscience even if you believe they are wrong. (8)

      Some opponents of conscience claims have asserted that those espousing claims of conscience are attempting to impose their moral or religious beliefs on others. (9) This misunderstands the nature of conscience claims. Jeffrey Blustein argues, "[i]t is part of the logic of the concept of conscience that my conscience can only forbid me from acting in certain ways or instruct me to act in certain ways, not other people." (10) It would be incoherent to assert that, "[i]f you did that, it would violate my conscience." Fundamentally, conscience claims should be understood as a kind of liberty claim. (11) Liberty claims can be contrasted with paternalistic or moralistic claims, restricting another's liberty for his or her own good or because the action is immoral, to which the critics' objection more closely corresponds. (12) Basic liberty has priority over paternalism and moralism, which require substantial justification. (13) In the case of paternalism, for example, the individual's decision must be impaired and disapproval of the good or end chosen is not sufficient to demonstrate impairment. (14)

   2. Cooperation

      Nonetheless, the ways in which individuals' actions interact in complex social systems should be acknowledged. Proponents of conscience are concerned that their actions will improperly contribute to another's immoral action and thereby violate their own integrity. (15) The face validity of this claim can be illustrated by an example unrelated to the conscientious objection debate. Suppose Jane's older brother and his friends went out to hear a band at a local bar. Her brother drives his friend's car. Later that night, his friend, who is clearly intoxicated, asks for the keys back so he can drive home. If Jane's brother returns the keys and his friend kills another driver in an accident, Jane's brother cannot disclaim all moral responsibility in the accident and death. (16)

      A developed analysis of the morality of such interactions can be found in the Roman Catholic conception of "cooperation." (17) The analysis of cooperation involves a series of distinctions. The fundamental distinction is between formal and material cooperation. (18) In formal cooperation the secondary agent shares the intent of the primary agent, who performs the action's immoral goal; while in material cooperation the secondary agent does not share the primary agent's intent. Formal cooperation is always immoral while some forms of material cooperation are morally acceptable. The tradition contends that material cooperation that involves actual participation in the evil deed itself is equivalent to formal cooperation. (19) It is called immediate, in distinction from mediate, material cooperation. (20) For mediate material cooperation to be justifiable there must be an independent and proportionately serious reason or set of reasons for cooperating. (21) In the medical context, these reasons must be over and above the medical reasons for performing the procedure. Such reasons might include keeping one's job or continuing in one's profession. The facilitating action must itself also be either good or indifferent. (22)

      The complete analysis of the acceptability of material cooperation is dependent on a series of secondary distinctions. One distinction is the relative seriousness of the immoral action. (23) Within the Roman Catholic moral tradition, immoral acts can be characterized in terms of their relative severity. For example, the use of post-coital contraception is more serious than the use of condoms because post-coital contraception potentially prevents implantation rather than fertilization. (24) A second distinction is how proximate or remote the secondary agent's action is in the causal chain leading to the primary agent's action. (25) A third distinction is how necessary or unnecessary the secondary agent's action is for the primary agent to accomplish his or her intention. Greater proximity or necessity increases the moral complicity. (26)

      A final consideration in the evaluation of...