Professional conscientious objection in medicine with attention to referral.

• Author: Cavanaugh, T.A.

1. INTRODUCTION

   At the University of Notre Dame's 2009 commencement, President Obama proposed to "honor [he conscience of [hose who disagree with abortion and draft a sensible conscience clause, and make sure that all of our health care policies are grounded not only in sound science but also in clear ethics as well as respect for [he equality of women." (1) This paper rakes up the President's suggestion by addressing conscientious objection in medicine. In what follows, this paper presents [he principal features of a sensible clause while elaborating upon the need to extend conscientious objection to include referral, a particularly controverted claim.

   What is a sensible conscience clause? First, one needs to distinguish professional conscientious objection in medicine from conscientious objection in employment more generally. The former concerns those who have publicly, or pro fateri, said what [hey stand for: professionals. (2) They have articulated and publicly stated an account of medical care that delimits what [hey take to be within and without [he practice to which [hey commit themselves. Most importantly, this account includes their conceptions of themselves as medical practitioners and what constitutes a patient, a disease, health, and medical therapy. Physicians, nurses, and pharmacists are medical professionals; ultrasound, radiology, and surgical technicians are not. A sensible medical conscience clause bears on the former. Conscientious objection in employment more generally would address the latter, just as it would address the issue of, for example, Islamic taxi drivers' religiously-based objections to transporting passengers carrying alcohol. (3) Thus, what follows concerns professional conscientious objection in medicine.

   This account understands a profession to have an independent character autonomous from what law permits and society accepts. While there is pluralism within professions concerning particulars, and, therefore, disputes within the professions concerning their self-conceptions, a profession and professionals, as such, always stand for something more than the efficient use of skill. Put most generally, this something more amounts to their view of the good they seek and the bad they avoid, or, their ethic. With this distinction in mind, and noting that conscientious objection bears on otherwise legal patient requests, the following outlines a conscience clause for medical professionals. After delineating conscientious objection, this Article will present the obligations attending it.

2. GENERAL FEATURES OF A SENSIBLE CONSCIENCE CLAUSE

   First, the professional objects based upon her professed account of medicine. Her account is public, promulgated, graspable by others, and scientifically-grounded. The objector must be capable of giving reasons accessible to others, in contrast to asserting an entirely personal stance. These reasons must refer to empirically grounded concepts of health, disease, the subject of both (the patient), the goals of medicine, its capabilities, and its boundaries. So, for example, an obstetrician who objects to circumcising a healthy newborn male may do so based upon his account of bodily integrity and the proper functioning of organs. For similar reasons, a nurse may object to being involved in a sterilization post-caesarian section. A pharmacist in Oregon or Washington might object to a terminally ill cancer patient's legal request to fill a lethal prescription for physician-assisted suicide in terms of life not itself being a disease. An anesthesiologist might object to her participation in capital punishment by reference to her account of the very concept of a patient and of sickness. In doing so, each of these professionals offers a reason-based explanation available to others for objecting to the relevant request. Professionals offer such explanations not in terms of exclusively personal beliefs, but rather, in terms of accessible, albeit controverted, answers to the central questions of medical practice. Those questions include: What is medicine? What is a patient? What is a disease? What is health? And what goals can and ought medicine to serve? (4)

   Because a sensible conscience clause must be grounded in a professed account of medicine, it does not cover, for example, objecting to relieving a patient's pain based on one's religious belief in pain's redemptive value or one's experiential belief that pain builds character. It does not extend to an obstetrician who considers anesthesia during labor objectionable based upon his religious conviction that Genesis 3:16 (5) requires that labor be redemptively painful. Nor does it encompass the profane belief in pain as character-building. Sensible objection requires that one's grounds be both reason-based and medical. A religious belief in the redemptive value of pain is neither reason-based nor medical. Alternatively, a belief in pain as character-building may be reason-based, but not medical. Thus, such nonmedical, non-reason-based convictions do not ground professional conscientious objection.

   The exclusion of profane, nonmedical-based convictions does not significantly depart from current statutes concerning conscientious objection in medicine. However, ruling out exclusively religious convictions importantly differs from current federal conscientious objection statutes, which explicitly mention religious beliefs as a basis for conscientious objection. (6) Accordingly, it requires comment. A sensible conscience clause for medical professionals does not extend to every instance of conscientious objection that society may be willing to grant to individuals. As noted, an employee may have a claim to conscientious objection in employment just as a citizen may have one to military-service or other forms of governmental-mandated action. (7) These claims may be grounded in religion. These rights of objection extend to the employee as an employee in the context of employment, or to the citizen as a citizen in the context of citizenship. So also, the professional has rights to conscientious objection in the context of profession, which may materially differ from those of the employee and those of the citizen. Most significantly, the professional's actual profession (her view of health, sickness, patients, and the purposes of medicine) grounds professional conscientious objection.

   As professions, medicine, law, and the clergy possess autonomy, literally of a self-lawed character. For example, the legal and clerical professions enjoy a virtually absolute degree of confidentiality not found elsewhere in social relations. (8) Professional conscientious objection in medicine is an instance of the autonomy of the professions from what is simply legal. (9) Professional conscientious objection differs from religiously grounded objection by being reason-based, and therefore, in principle, accessible to all. To highlight exclusively religiously-based conscientious objection to the neglect of professional conscientious objection renders conscientious objection a strange and alien phenomenon to the nonreligious. More importantly, to do so erroneously suggests that the professional has no positions concerning the ethics of her own practice. The venerable Hippocratic Oath indicates otherwise. (10) Regardless of one's judgment concerning the Oath, it points to a 2,400-year-old autonomous profession, as does professional conscientious objection more generally. Accordingly, we must distinguish professional from religious conscientious objection.

   Because the professed account of medicine must be empirically grounded, new information and technological changes influence it. It is scientifically grounded, not ideologically based. Accordingly, unlike ideology, discoveries can change it. For example, to consider one currently debated issue of conscience, some find emergency contraception (sometimes known as EC, the "morning after pill," or by its trade name Levonorgestrel (11)) morally problematic. (12) They do so because they believe it to have at least two mechanisms of operation by which it prevents pregnancy: First, a contraceptive agency by which it prevents ovulation and, thereby, fertilization of an ovum, and second, an abortifacient mechanism by which it prevents the fertilized ovum from implanting in the uterus. All acknowledge the contraceptive mechanism. Dispute and some ambiguity attend the second, putatively abortifacient mechanism. (13) If it were to be established that the currently favored emergency contraception, Levonorgestrel, had no abortifacient mechanism, or if an alternative pill were developed that acted solely as a contraceptive, then one who finds abortion professionally objectionable--while not objecting to contraception--could with a clear conscience prescribe, fill, or administer it. Whatever the case concerning this example, professional conscientious objection must be evidence-based.

   This brings us to the second feature of the clause, which addresses a particularly difficult issue in determining the outlines of sensible conscientious objection. Namely, may objection refer to specifics about the patient or must it refer solely to a requested intervention? (14) While there may be legitimate instances in which a professional objects to performing some intervention based upon characteristics of the patient--for example, a physician might prescribe contraceptives while objecting to doing so for minors--such cases ought to be regarded as exceptions to a general rule which focuses on objection to specific interventions. Generally, the professional ought to object to a requested intervention, not to the requestor. So, for example, if a fertility doctor does not object to in vitro fertilization in terms of his account of medical practice, he ought to provide it to all otherwise medically-qualified patients. (15) Generally, objection ought not employ any nonmedical reference to the patient who...