Great new Perspectives piece by Lisa Harris out in NEJM on the need to recognize that conscience can compel action, not only refusals to provide certain types of care (including abortion). Elizabeth Sepper makes a similar argument in her forthcoming article in the Virginia Law Review.
First, let me just say that I couldn’t agree more – it is essential to recognize both sides of the coin. As I’ve argued elsewhere, both ought to be respected and protected, to a point, but the issues raised by conscientious refusal versus conscientious action are distinct in some important ways. The primary problem with refusals is that they can burden patients by creating barriers to care, if not managed appropriately. On the other hand, conscientious action would make care available to patients – and what could be wrong with that?
In many cases, I think the answer is nothing. So long as conscientious actors are providing services that are within the realm of legal permissibility, they should generally be protected in their jobs, licensure, access to funding, etc., even if other people would prefer for those services were inaccessible or illegal. But Harris raises an interesting point, referencing recent laws in Georgia and Arizona that ban abortion after 20 weeks’ gestation, with no allowances for providers who feel conscience-bound to offer care after that limit. The clear implication of Harris’ argument is that such allowances should be made in order to accommodate conscientious actors, just as there are exceptions made for conscientious refusers. The problem with this reasoning, at least in this example, is that conscientious refusers are not asking for an exception to any legal requirement per se. There is no law saying they must perform abortions, and the protection they seek is from employers or funders demanding that they do something that the law permits. The conscientious actor, on the other hand, would be asking for an exception to what the law requires – namely, refraining from performing abortions past 20 weeks.
Imagine that someone felt compelled by conscience to end the suffering of a horribly impaired newborn or elderly patient, to provide medical marijuana outside a jurisdiction where doing so would be legal, or to perform female genital cutting so that a little girl’s family wouldn’t take her somewhere less safe to get the procedure done. We might sympathize with the conscientious actor in some or all of these cases – but nonetheless, the actor would have broken the law. And providing an exception to the law so that conscientious actors can abide by their conscience would actually change the very nature or threshold of what is legally permissible and what is not. The conscientious refuser’s behavior does not have that affect (unless, perhaps, his refusal creates such a barrier to access that the service in question might as well be illegal, in which case his refusal is unacceptable).
Ultimately, laws have to set limits – and those limits (are supposed to) reflect social agreement as to which actions are permissible and which are not. If someone feels compelled by conscience to act outside those limits, they have an obligation to convince others and change the law. Then, they can abide by their conscience in providing various types of medical care – and refusers can abide by theirs in not doing so. Note that the key here has to do with limits; refusers seek to avoid doing something the law would permit (or perhaps compel) them to do, whereas conscientious actors might seek to do something beyond the limits of what the law allows.
Finally, let me just provide a bit of information on the types of legal protection currently available to conscientious actors who seek to provide services that are legal permissible. While this is an oversimplification, the federal Church Amendments prohibit any entity that receives federal funding under certain statutes from discriminating against health care personnel in employment, promotion, termination of employment, or extension of privileges because the individual performed or assisted in the performance of sterilization, abortion, or any lawful health service or research activity, or because he or she refused to do so. There are similar protections against discrimination against applicants to training programs because of the applicant’s reluctance or willingness to participate in abortions or sterilizations. It is true, however, that the vast majority of conscience laws are focused on protecting refusers.
So what do you think – have I gotten this all wrong? Should conscientious refusals and conscientious actions be equally accommodated?
Great post Holly. I haven’t read neither Harris nor Sepper’s pieces, but maybe is useful to remind the distinction between civil disobedience and conscientious objection. The objector was traditionally depicted as someone who did not necessarily wanted to change the law but seeks to be exempted from a duty for himself, whereas the civil disobedient, either by action or ommission, is trying to change the law by non-conventional means, so to say (by the way, duties can always be described as prohibitions). The one who, for professional or moral reasons, aims to perform late abortions beyond what the legislator has established is a civil disobedient, in that sense, as well as many doctors in Spain who, working for the public health care system are presenting themselves as “conscientious objectors” because they will keep taking care for illegal immigrants who, from september 1st, are not generally covered – with some exceptions. They could, certainly, give care privately – it is not forbidden to treat them- but they want to use the public resources which the government has now – for financial reasons- decided to devote only for the care of legal residents.
So, in a nutshell, it seems to me that what really makes the distinction is not whether the behaviour is describable as active or passive, but the nature of the agent’s purpose. In a (trivial) sense, underlying every decision are moral considerations.
Thanks, Pablo. I agree that is a helpful distinction to keep in mind. But I think what Harris has in mind is a legislative exception allowing conscientious actors to perform certain services that they feel morally compelled to provide. So this wouldn’t be disobedience per se.
I’ve struggled with this issue as well, Holly. But I might push back on your characterization of conscientious action (as opposed to conscientious refusal) as changing “the very nature or threshold of what is legally permissible or not.” I find it difficult to draw as clear a distinction as you do between law’s prohibition of Act X and law’s granting permission for an employer to sanction employees who refuse to perform Act X. In the case of conscientious refusers, laws like the Church Amendment limit the legally permissible actions an employer can take – obviously, the party potentially “breaking the law” is the employer rather than the refuser, but legal accommodation of either refusers or actors does change the boundaries of what’s legally permissible.
Hi Nadia, that’s right – exceptions protecting conscientious refusers do impact what the law permits in terms of employment discrimination, etc. But my point is more specific to the medical service/care in question. When a refuser is protected in his or her refusal, the social/legislative decision about what services/care should be legally available is unchanged by the grant of the exception (assuming refusals are properly managed so as not to unduly burden access, as I indicate in my post – which is a very big/important assumption). But when an actor is protected in his or her action beyond what would otherwise be allowed, the social/legislative threshold of what is permissible is changed by individuals – which is precisely what I believe refusers should not be able to do. The same should go for actors. To say things a little more concretely: Legislature says abortion till X week is OK and beyond X week is not OK. Refuser says no and refusal is properly managed – women can still access abortion till week X. Actor says yes – women can now access abortion beyond week X, overriding the democratic determination of permissible action.
You’re absolutely right, Holly, and this creates a huge problem of legitimacy: the efficacy of the law is not in peril when the objector refuses to act, whereas a single act to go beyond the limit, in your example, frustrates the legislator’s purpose (is not manageable, in your terms). However, even in the former case, the law’s efficacy is in any case contingent upon the existence of a critical mass of obedients. If we know that we have reached that threshold, that we are barely capable of providing the service, any new refusal to act has the same frustration effect as the conscientious-based action.
Great post, and thanks for linking to my piece and always pushing me to think more deeply about these issues. I don’t think a desire to transgress the law cleanly separates what I’d call willing providers from refusing providers. In fact, refusing providers do seek to violate generally applicable laws, whether emergency contraception in the ER mandates, informed consent requirements, or statutes requiring compliance with advanced directives. They’ve admitted the possibility of harming patients from their refusal by their desire for immunity from tort liability for their refusal.
Instead of (or as well as) seeking to overturn these legal requirements, they have sought legislative exceptions, precisely in the model Harris suggests for conscientious willing providers. You suggest a number of slippery slope applications of a wide-ranging exception. But I’d suggest that we already have seen exceptionally broad legislative exceptions for conscientious refusers in some states (Mississippi, Illinois, Washington) that lead us down a far more dangerous slippery slope, into a world where medical providers, facilities, and payers may harm patients by withholding services, information, and options without repercussion.
Hi Liz – You’ve raised really good points about access and possible harms from refusals, and provided some excellent examples of circumstances in which refusers are not just refusing to do what they are permitted to by law, but rather refusing to do what they are required to. I wasn’t sufficiently nuanced about capturing those circumstances in my post (dangers of blogging, I guess!).
But I think my point about upper limits still stands, right? Conscientious actors might wish to provide a service beyond what the legislature has authorized, whereas conscientious refusers would (always, I think) remain below that threshold, whether they seek exemption from a legal requirement or just to avoid acting in a way that the law allows.
This whole area is screaming out for a taxonomy of refusal/action types, outcome for patients, and examples! Maybe someday when we have time…
I’m largely with you, since doctors certainly can permissibly refuse to deliver services for non-conscientious reasons. As to upper limits, I think it depends how we think of the limits set by a legislature. If the category is care services “authorized” by a legislature, then yes, I think the upper limits point stands. No refuser seeks to provide services beyond those authorized. But if we think of legislative action in terms of setting what services are “authorized” and what services are “required,” then I think we see limits on both sides with refusers seeking to transgress the limits as well (dipping below what is required – such as EC or informed consent). We could also think of “authorized services” differently and consider a treatment of a sexual assault victim without offering EC an unauthorized service.
Sounds like another book project – maybe in all our “free time”!