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The Legal Ethical Backbone of Conscientious Refusal

  • CHRISTIAN MUNTHE and MORTEN EBBE JUUL NIELSEN
Abstract:

This article analyzes the idea of a legal right to conscientious refusal for healthcare professionals from a basic legal ethical standpoint, using refusal to perform tasks related to legal abortion (in cases of voluntary employment) as a case in point. The idea of a legal right to conscientious refusal is distinguished from ideas regarding moral rights or reasons related to conscientious refusal, and none of the latter are found to support the notion of a legal right. Reasons for allowing some sort of room for conscientious refusal for healthcare professionals based on the importance of cultural identity and the fostering of a critical atmosphere might provide some support, if no countervailing factors apply. One such factor is that a legal right to healthcare professionals’ conscientious refusal must comply with basic legal ethical tenets regarding the rule of law and equal treatment, and this requirement is found to create serious problems for those wishing to defend the idea under consideration. We conclude that the notion of a legal right to conscientious refusal for any profession is either fundamentally incompatible with elementary legal ethical requirements, or implausible because it undermines the functioning of a related professional sector (healthcare) or even of society as a whole.

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Notes

1. Crude and popularized preliminary versions of some of the arguments and analyses presented here were previously published in a blog post by Christian Munthe. Munthe C. Five Observations About Conscientious Objection in Health Care. Philosophical Comment, May 1, 2015. Available at http://philosophicalcomment.blogspot.com/2015/05/five-observations-about-conscientious.html (last accessed 9 May 2016).

2. Montgomery, J. Conscientious objection: Personal and professional ethics in the public square. Medical Law Review 2015;3(2):200–20.

3. West-Oram, P, Buyx, A. Conscientious objection in healthcare provision: A new dimension. Bioethics 2016;30(5):336–43.

4. ILO Labour Law. Web resources of the International Labour Office, 2015. Available at http://www.ilo.org/global/topics/labour-law/lang–en/index.htm (last accessed 9 May 2016). See also International Labour Office. Rules of the Game: A Brief Introduction to International Labour Standards, Revised ed. Geneva: International Labour Office; 2014.

5. As this is a legal duty of the employee, no matter what morality he or she subscribes to, it does not imply the existence of a legal right to conscientious refusal, however.

6. Although granting such conditions will imply a legal duty to abide by a signed contract, this duty does not imply a legal right to conscientious objection, but rather a legal right to have agreed contract clauses respected.

7. For example, in Sweden, at the moment of this writing, there are cases in various stages of due process (lost in some instances, but pushing on toward the European Court of Human Rights), where some healthcare professionals, backed up by pro-life activist organizations, have demanded either to be employed in a position where practices related to legal abortion is in the work description, explicitly stating that they will refuse these particular practices, or to be exempted from participating in them while employed at a workplace where abortion is among the procedures performed. See, for example, Anti-abortion midwife loses ’conscience clause’ case. Radio Sweden News. Available at http://sverigesradio.se/sida/artikel.aspx?programid=2054&artikel=6301095 (last accessed 9 May 2016); and Padbury S. Swedish court rules midwives must perform abortions. Baptist Press, December 1, 2015. Available at http://www.bpnews.net/45892/swedish-court-rules-midwives-must-perform-abortions (last accessed 1 Dec 2015).

8. Minerva, F. Conscientious objection in Italy. Journal of Medical Ethics 2015;41(2):170–3. See also Savulescu, J. Conscientious objection in medicine. British Medical Journal 2006;332(7536):294–7.

9. We assume such a right to include protection against any form of penalty, dismissal, or hiring refusal by an employer.

10. Together with the assumptions of voluntary employment and the reality of the work market for healthcare professionals discussed, these distinctions diffuse or make irrelevant the various comments made by Trigg in Trigg R. Accomodating conscience in medicine. Journal of Medical Ethics 2015;41:174.

11. Examples here may include isolated instances of violating regulations of traffic, public order, or violence for honorable reasons (such as protecting individuals from serious harm), or even lying to, deceiving, or breaking the confidence of a person or institution to which one is bound by legal trust (such as an employer) in order to expose criminality or unethical behavior.

12. Weinstock, D. Conscientious refusal and health professionals: Does religion make a difference? Bioethics 2014;28(1):815.

13. Scheffler, S. Equality and Tradition: Selected Essays. Oxford: Oxford University Press; 2010.

14. See note 12, Weinstock 2014, at 10.

15. See also note 2, Montgomery 2015. It is notable that the reasons would not seem to support the idea of hiring healthcare professionals who declare that they will conscientiously refuse some of the activities in the work description of the employment they seek.

16. Usually found in preliminary works, such as white papers and bills or case law rulings.

17. We may view the reasons presented by Weinstock as representing potential such motivations.

18. Glaeds T. Busch Thor (KD) får hård kritik av Kalmarläkare. SVT Nyheter, April 30, 2015. Available at http://www.svt.se/nyheter/lokalt/smaland/kalmarlakare-viralattackerar-busch-toor (last accessed 22 Aug 2016).

19. Cowley, C. A defence of conscientious objection in medicine: A reply to Schuklenk and Savulescu. Bioethics 2016;30(5):358–64.

20. Particularly, brusk external handling, the penetration of bodily openings, breach of its surface layer, modification of its internal content and structure, and introduction into it of potentially highly destructive substances.

Christian Munthe acknowledges support from the Swedish Research Council for Health, Working Life and Welfare (FORTE) and Swedish Research Council (VR) contract no. 2014–4024, for the project Addressing Ethical Obstacles to Person Centred Care; and VR, contract no. 2014–40, for the project Gothenburg Responsibility Project. Morten Ebbe Juul Nielsen acknowledges support from the University of Copenhagen Excellence Programme for Interdisciplinary Research projects GO – Governing Obesity and Global Genes, Local Concerns.

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Cambridge Quarterly of Healthcare Ethics
  • ISSN: 0963-1801
  • EISSN: 1469-2147
  • URL: /core/journals/cambridge-quarterly-of-healthcare-ethics
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