Posted on September 23, 2019 at 9:11 AM
A Catholic physician who invokes conscientious objection to refuse offering a legal service in a secular institution is legally protected from retaliation by their employer. However, a secular physician who attempts to invoke conscience legislation to provide a legal service in a Catholic institution is not legally protected. In the bioethics literature on conscientious objection, this is sometimes referred to as the asymmetry problem.
This is precisely the situation that has played out recently in Colorado where a veteran physician, Dr. Barbara Morris, was fired after suing her employer for the right to assist her patient, Cornelius Mahoney, in ending his life. The employer is Centura Health, a system jointly run by Catholic and Seventh-Day Adventist churches that believes physician aid in dying to be an intrinsically evil act even though it is now legal in Colorado. Dr. Morris sued the hospital on the grounds that its faith-based policy violates the law that now permits physicians to provide physician aid in dying.
Positive claims of conscience involve an insistence on performing some act, whereas negative claims of conscience involve a refusal to perform an act. Bioethicist Mark Wicclair has pointed out that, in health care, positive claims of conscience often align with liberal values (e.g., providing abortion, emergency contraception, physician aid in dying), whereas negative claims of conscience often align with conservative values (e.g., refusals to perform abortions, provide emergency contraception, or physician aid in dying). Given that positive claims of conscience tend to be asserted by those with liberal values, and negative claims asserted by those with conservative values, does the asymmetry problem represent a legal bias towards conservative over liberal values?
At first pass, this may seem like a straightforward case of unjustified bias, but there are important reasons to consider positive claims of conscience different from negative claims. The first reason involves the value integrity of the institution employing the physician. Secular hospitals committed to providing ethically controversial yet legal services to patients (e.g., abortion) are often able to accommodate conscientious refusals while upholding their commitment to providing a service. With good communication and some advanced planning, it is generally possible to locate another willing provider to step in and provide the service. However, it is not as easy for an institution to maintain value integrity if physicians are able to provide services the hospital conscientiously objects to. For a hospital that objects to physician aid in dying, if only one physician asserts a positive conscience claim to provide that service then the hospital is no longer able to uphold their values. A second reason to think positive claims of conscience are different from negative claims is that the hospital is forced to provide the resources by which the physician enacts physician aid in dying. Nothing stops a physician who believes in providing physician aid in dying from organizing with other like-minded individuals and opening a clinic that provides this service, but situations similar to what unfolded in Colorado ask institutions to provide physicians with the resources needed to perform an act with which the institution morally objects. Not only would the Catholic hospital be unable to uphold their value, it must pay for the service it objects to. These concerns show the asymmetry problem in conscientious objection may not be a case of simple bias but may be driven by substantive reasons why conscientious refusals are different from conscientious provisions.
However, there may be other reasons to consider constraining conscientious refusals, such as instances where refusal creates a significant barrier of access for the patient. In the Colorado case, the patient did not want to be referred to another institution because of the additional diagnostics, travel, and costs that would be encountered in the face of debilitating symptoms. Should burdens of access to legal medical services be considered when deciding how to respond to conscientious refusals, and, if so, how great of a burden is needed to justify what sort of limitations can be placed on a conscientious refusal?
Beyond these considerations, there is a range of additional issues looming over how to handle conscientious refusals in health care. Are those exercising a conscientious refusal obligated to inform or even refer patients for medical procedures they do not agree with? Should conscientious refusals be permitted in emergencies? Although conscientious refusals often focus on abortion or physician assisted suicide, what about other procedures, such as the provision of IVF or organ procurement? Should conscientious refusals only be permitted for procedures, or can a physician conscientiously refuse to treat a type of patient? For example, there have been cases of Muslim medical students refusing to see patients of the opposite sex, a physician who refused to treat democrats, and a group of physicians who objected to treating sexual dysfunction in convicted sex offenders. Should conscientious refusals need to satisfy a standard of reasonability, such as consistency with empirical facts or the goals of medicine? These questions show that these cases of conscientious objection are rarely straightforward, making the topic a place for lively discussion in bioethics now and likely for some time in the future.