Published online by Cambridge University Press: 09 December 2016
The spread of demands by physicians and allied health professionals for accommodation of their private ethical, usually religiously based, objections to providing care of a particular type, or to a particular class of persons, suggests the need for a re-evaluation of conscientious objection in healthcare and how it should be regulated. I argue on Kantian grounds that respect for conscience and protection of freedom of conscience is consistent with fairly stringent limitations and regulations governing refusal of service in healthcare settings. Respect for conscience does not entail that refusal of service should be cost free to the objector. I suggest that conscientious objection in medicine should be conceptualized and treated analogously to civil disobedience.
1. See, for example, the Australian Medical Association statement on conscientious objection, which requires that patient access to care not be impeded by the objector nor undue burdens placed on colleagues; available at https://ama.com.au/position-statement/conscientious-objection-2013 (last accessed 25 July 2016).
2. Cannold L. The questionable ethics of unregulated conscientious refusal. ABC Religion and Ethics March 25, 2011; available at http://www.abc.net.au/religion/articles/2011/03/25/3174200.htm (last accessed 20 Feb 2016).
3. Cook H. Soul Pattinson pharmacy chain dumps devout Catholic chemist in furore over pill. The Sydney Morning Herald, February 15 2014; available at http://www.smh.com.au/national/soul-pattinson-pharmacy-chain-dumps-devout-catholic-chemist-in-furore-over-pill-20140214-32rj3.html#ixzz49XkKPGhp (last accessed 25 July 2016).
4. Hasham N. Hospital refuses to discharge asylum seeker toddler to prevent return to Nauru. The Sydney Morning Herald, February 13, 2016; available at http://www.smh.com.au/national/nauru-baby-being-kept-by-brisbane-hospital-20160212-gmt3dg.html (last accessed 25 July 2016).
5. Australian Medical Association. Doctors ‘obliged’ to speak out on asylum seeker health. Australian Medicine 2015; available at https://ama.com.au/ausmed/doctors-‘obliged’-speak-out-asylum-seeker-health (last accessed 23 May 2016).
6. Wood AW. Kant on Conscience. Forthcoming in Russian: Kalinniko L, trans. in Kantovski Sbornik; available at: http://web.stanford.edu/∼allenw/webpapers/KantOnConscience.pdf (last accessed 15 Feb 2016).
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13. See note 6. Wood forthcoming.
17. See for example, Kochanska, G, Aksan, N. Conscience in childhood: Past, present, and future. Merrill-Palmer Quarterly 2004;50:299–310;CrossRefGoogle Scholar Kochanska, G, Coy, KC, Murray, KT. The development of self-regulation in the first four years of life. Child Development 2001:72:1091–111;CrossRefGoogle Scholar Mischel, W. Metacognition and the rules of delay. In: Flavell, JH, Ross, L, eds. Social Cognitive Development. Cambridge: Cambridge University Press; 1981:240–71.Google Scholar
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19. See note 18, Kant 1784.
20. See note 18, Kant 1784.
21. See note 18, Kant 1784.
22. See note 18, Kant 1784.
23. In the second kind of case, the profession agrees that the practices are wrong and contrary to medical principles. Conscientious exemptions are only sought when the practice objected to is not thought to be contrary to those principles, but it is recognized that some people sincerely disagree with the practice or are under a religious obligation to refrain from participation. And even then, sincere and religiously based disagreement is not a sufficient basis for exemption, as the racist physicians examples demonstrate. It appears that religion can still provide respectability for sexism, however.
24. See note 18, Kant 1784.
25. I am not suggesting that this is true of all cases of religiously based objections; however, I am suggesting that the reasons offered in justification need to be accessible to those who do not share the religious worldview of the practitioner.
26. See note 18, Kant 1784.
27. See note 18, Kant 1784.
28. See note 18, Kant 1784.
29. Dare, T. The Counsel of Rogues?: A Defence of the Standard Conception of the Lawyers’ Role. London: Ashgate; 2013;44.Google Scholar
30. Oakley, J, Cocking, D. Virtue Ethics and Professional Roles. Cambridge: Cambridge University Press; 2001.CrossRefGoogle Scholar See, especially, chapter 5. See also Kennett, J. Roles, rules and Rawls: Commentary on: The Counsel of Rogues . The Australian Journal of Legal Philosophy 2011;36:156–65.Google Scholar
32. People with a history of addiction are often denied pain relief in circumstances where it would be offered to others, and are disbelieved when they present with symptoms that in other patients would be carefully explored. See Lianping TI, Voon P, Dobrer S, Montaner J, Wood E, Kerr T. Denial of pain medication by health care providers predicts in-hospital illicit drug use among individuals who use illicit drugs. Pain Research Management 2015;20(2):84–8; available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC4391443/ (accessed 25 July 2016). Although these are not cases of conscientious objection as such, the denial of care to stigmatized groups is often moralized. Transgender individuals also regularly report denial of care on moral grounds. “An Australian-first study of the experiences of older trans people reveals many have faced a lifetime of discrimination and abuse …Refusal of care from GPs, psychiatrists, dentists and other medical specialists was a common experience for the study’s participants, with some saying doctors had denied them treatment on moral or religious grounds.” In Stark J, ‘We don’t look after people like you.’ Transgender people refused medical care. Sydney Morning Herald, October 18, 2015; available at http://www.smh.com.au/national/we-dont-look-after-people-like-you-transgender-people-refused-medical-care-20151015-gk9ss1.html#ixzz40GsQDkpJ (last accessed 25 July 2016).
33. Brownlee K. Civil disobedience. In: Zalta EN, ed. The Stanford Encyclopedia of Philosophy, Spring 2016 ed.; available at http://plato.stanford.edu/archives/spr2016/entries/civil-disobedience/ (last accessed 25 July 2016).
34. Brownlee, K. Conscientious objection and civil disobediences. In: Marmor, A, ed. The Routledge Companion to the Philosophy of Law. New York: Routledge; 2012:527–39.Google Scholar
35. The gaming of exemptions for conscientious objection in order to avoid performing abortions has been suggested to me in conversation by several practitioners who argue that this places an undue burden on those practitioners who believe this is a necessary service for women and who feel stigmatized within the profession for offering it. No one likes performing abortions, but to dislike is not conscientious objection.
36. Where service refusal is based on a perceived and irreducibly religious requirement, Weinstock suggests that the practitioner’s reasons are not shareable (See note 31, Weinstock 2014). He argues that freedom of conscience and freedom of religion are rights grounded in distinct sets of moral considerations. I agree that it is useful to distinguish the two. Here is one difference. Practitioners citing a religious requirement as grounds for consideration may have no interest in bringing about a broad change in professional practice. Muslim physicians may have no moral issue with non-Muslim physicians examining (non-Muslim) opposite sex patients for example. Orthodox Jewish physicians may have no problem with others working on the Sabbath. But this is not always the case. Catholic physicians opposed to abortion presumably believe that no one should have or perform abortions or use oral contraceptives, and some physicians may object on religious grounds to any offering of reproductive assistance to homosexual people. Weinstock suggests that accommodations should be granted to the religious physician in the interests of promoting diversity within the profession and making care accessible and acceptable to religious minorities. I cannot address the question of religious accommodation here; however, examples provided by Cannold of the disastrous consequences of treatment refusals by religious hospitals suggest that this should be strictly regulated, and that such physicians and hospitals should be made accountable for harms suffered by patients as a result.