Freedom of conscience in the medical field, particularly in cases involving abortion and emergency contraception, is currently a hotly contested topic, so much so that Stormans Inc. v. Wiesman - a case disputing whether a pharmacist has the right to refuse to dispense emergency contraception when it violates his or her religious beliefs - has made it to this year's Supreme Court docket. Traditionally, a medical professional’s right to conscientious objection -- or refusing to perform services or dispense drugs that violate their conscience -- has been protected by law (Dresser 280), but recently, as shown by Stormans Inc. v. Wiesman, and other cases like it, this protection has come under scrutiny and been rejected by many legal authorities and policy makers. [Since writing this essay the supreme court has refused to grant this case certiorari, allowing the appellate court ruling to stand, which essentially denies a small religious pharmacy the right to choose not to provide morning after pills, even though there is no shortage of access in the area and it puts an undue and discriminatory burden on the pharmacy - which directly contradicts all precedent for religious liberty cases. If you're interested in reading a scathing dissent by justice Alito, which is just as informative about the current state of religious liberty rulings and how we got to this point as it is entertaining, check out his dissent in this case.] Replacing the right to conscientious objections in many cases is the mandate to refer. The idea is that in order to ensure timely care, especially in pharmacies where obtaining an emergency contraception pill, for example, is an extremely time sensitive order to be filled (Card 9), if the medical professional is morally opposed to providing the service requested they are allowed to refuse but required to refer the patient to someone who is willing to provide the service. Many doctors, however, who are morally opposed to providing certain services feel that referring a patient to someone else still puts them in the chain of causality and makes them morally complicit in the perceived evil or wrong. For this reason, although it is often thought the best solution by law or policy makers, it is universally rejected by ethicists in the field, even those who oppose a broad right to conscientious objections (Card 9, Murphy 351-352, Dresser 282). Supporters of such policies, as well as many of those who reject them, believe that the medical community has a moral obligation to ensure access to medical services by licensed professionals. Medical professionals refusing to perform services creates shortages in care and impedes patient access to healthcare (Dresser 282). Though the mandate to refer is typically viewed as the prime solution to balancing freedom of conscience and the medical professional’s duty, this paper will argue that the responsibility to ensure access to medical care does not fall on conscientiously objecting individuals, but rather on the medical profession as a whole, and that the conscientiously objecting individual should retain their traditionally protected status. In order to fully illustrate this claim it is necessary to discuss the nature of freedom of conscience, the medical professional’s obligation to society and to their patients, and how far freedom of conscience extends when weighed in balance with the responsibility of the medical professional to the rest of society.
1. Freedom of Conscience
Traditionally there are two great obligations devolving on man which comprise the essence of his humanity. The first of these is an obligation to his own conscience - or judging right and wrong and acting out of that judgement. It is often said that the ability to reason is what separates man from the beasts; reason, as defined by Noah Webster is “A faculty of the mind by which it distinguishes truth from falsehood, and good from evil, and which enables the possessor to deduce inferences from facts or from propositions” (Webster). But surely it is not only man’s ability to reason, to think, to judge, but also conscience or the sense of purpose and moral responsibility to act according to his reason and intuition that truly makes man human. Jeffrey Hammond, a law professor at Faulkner University writes about three things he says Martin Luther taught us about conscience at the Diet of Worms: first, that conscience is “the sacred space in which a person holds safe her most closely held values and makes her most important judgements” (433) and that Luther was “formed by his conscience;” second, “conscience is a guide for the holder” teaching them how to act; third, quoting Luther in his plea before the jury Hammond says “‘it is neither safe nor sound’ to abrogate one’s conscience...to violate his conscience, recant, and then slide back into obscurity under his accusers’ thumbs would be to do violence against himself. It would be to harm himself, the actor” (434). From this we can plainly see that a man’s conscience is not just reasonable thoughts or prudent maxims by which to live, but an essential part of his being that cannot be divorced from his person without actual violence to himself. In “Freedom of Conscience in Healthcare: Distinctions and Limits,” Sean Murphy and Stephen Genuis explain that, according to research done by Tzvetan Todorov, “a sense of guilt or shame often haunts people who have been forced to participate in wrongdoing” (349). They mention various examples from the study such as “the ‘shame of destruction’ experienced by those who succumb to torture...concentration camp inmates forced to do that which they abhor” and “the guilt experienced by rape victims” (349), as well as a later example of the prison guards in concentration camps (350). They use the trauma and guilt felt by those in Todorov’s study to illustrate the “inseparability of the person and the will” (349) and clearly demonstrate that even in cases where someone is forced to violate their conscience against their will, as Hammond acknowledged with the example of Martin Luther, there is real harm done to that individual in the violation. One can only imagine how much greater that harm is in circumstances where the violation was committed from peer pressure as opposed to actual coercion.
Murphy and Genuis also provide another interesting insight into freedom of conscience by bifurcating it into two distinct categories: “Perfective” freedom of conscience and “Preservative” freedom of conscience (348). Perfective, they explain, is an action taken because a person believes it be correct or good, like volunteering in the community, intervening when someone is about to get hurt, or any other time a person acts out of a feeling of moral or ethical obligation. Preservative freedom of conscience, on the other hand, is choosing not to act in order to avoid committing a perceived wrong; some examples could include not buying products that harm the environment, not taking drugs, or an example more relevant to the discussion at hand, a doctor declining to perform an abortion because they believe it is morally wrong. They claim that preservative freedom of conscience may be justly abridged to keep citizens from harming others, but it is only justifiable to violate preservative freedom of conscience in extreme cases and as a last resort, or when immediate harm or injury is foreseeable, because of the actual harm it does to the individual (352). They argue that instead of coercive means these issues of freedom of conscience can “be resolved with sufficient imagination and political will, without prejudice to freedom of conscience” (352).
2. The Social Contract and The Medical Professional’s Obligation to Society and Their Patients
As great as man’s obligation to act according to his conscience is, no man is an island. The second great human obligation is man’s obligation to those around him. Ceremonies, weddings, funerals, humanitarian projects, rejoicing with those one is with, mourning with those that mourn, and sacrificing to help those less fortunate than one’s self - surely these ties of society are just as essential to man’s humanity as are his ties to himself. Governments, communities, cities are all built off of this fundamental desire we feel to be with others, and the moral responsibility we feel to ensure that all men are treated fairly, justice is accomplished, and the less fortunate are cared for. Often this obligation to those around us is described as a social contract in which each person invests and is expected to honor the investments of others. As is clearly evident, these socio-contractual obligations are derived directly from and can be viewed as extensions of obligations of conscience. It is therefore of major concern when these two obligations come into conflict due to complex and diverse societies.
In his article “Pharmacists and the Social Contract,” Kenneth Richman argues that “pharmacists benefit from a monopoly on the right to dispense prescription medications. This monopoly, like public utilities, comes with responsibilities that go beyond the usual duties of professionalism. Pharmacists have a duty to conform to the system which has invested in them and in which they have invested” (15). He argues that because pharmacists have entered into a social contract by being given a monopoly and because they have the ability to affect the laws and policies governing their profession, conscientious objections are unjustifiable. He argues that if a pharmacist wants to protest a policy or law he should do it off the clock, when not performing the duties he has contracted to do (15). Robert Card, in “Conscientious Objection and Emergency Contraception,” also supports this position by arguing that specifically in the case of emergency contraception (EC), because there is potential harm done to the woman if the drug is not dispensed immediately by the first pharmacist they go to and because a pharmacists should prioritize patients over self, pharmacists have a socio-contractual obligation to dispense the drug. In addition, Rebecca Dresser addresses this issue by describing the current scarcity of abortion providers compared to the recent demand for abortion procedures and states that “without reasonable access, the right to terminate a pregnancy becomes an empty right” (280). However she argues, like Murphy and Genuis, that this response should not violate an individual physician’s freedom of conscience, but should come from the medical community at large (282). She readily admits that there is no quick fix solution to balancing an individual’s freedom of conscience and still ensuring that women have access to abortion and other contested services (284), but she provides workable alternatives to the mandate to refer. The two main ways she proposes are through changes in training programs -- making abortion training more readily available and having those trainings be on an opt out basis instead of opt in -- and through a change in the social climate -- she suggest things such as providers who don’t perform abortions, but are not objected to them, vocally acknowledging the contributions of those who do, as well as the medical community in general extending symbolic gestures or support and local law enforcement doing more to protect abortion workers (283-284).
3. The Extent of Freedom of Conscience When Weighed in Balance with the Responsibility of the Medical Professional to the Rest of Society
Another way to frame the argument, outside of social contract theory, is the principle of a “duty” or “standard of care.” Medical professionals have been put in special positions of trust and authority, due to their training, education, and legally licensed status, and have an elevated “duty of care,” or are held to a higher standard of care then a common person -- Meaning simply that they have a greater responsibility to ensure that harm does not come to others who are not in the same privileged position as them due to their actions or inactions. Of course, as with most legal principles, this is tempered by the standard of reasonableness, or in other words the standard of care is defined by how a reasonable person would act in their situation and respond to the reasonable foreseeability or unforeseeability of harm. Because of our free market healthcare system this iteration is a much more reasonable way to frame the argument, and here’s why: though it seems the medical community has been given a “monopoly” on providing medical services by laws establishing that only professionals with proper licensure can practice medicine or distribute drugs, the medical community is so expansive, so diverse, and so open to anyone willing to spend the time and money to educate themselves enough to join it, that it cannot rightly be called a monopoly in the sense the word is generally used. Specifically in the case of pharmacies, Dresser’s argument would reasonably suggest that even if there is a perceived monopoly it is the responsibility of the medical community to ensure that customers know where they can go to get the drugs they need, not the responsibility of the conscientiously objecting individual.
Assuming that the individual doctors, pharmacists and other medical professionals are bound by a social contract that dictates they must ensure that all services are provided to every members of the community leads to some absurd conclusions. These are well demonstrated by asking a couple of essential questions to understand the scope of what that claim entails. The first question that needs to be asked is this: does the medical community have a responsibility to provide every service that society deems necessary for every individual who wants it? And if they do have this obligation, does it only apply to those who can pay for the services, or those who can’t pay as well? Answering affirmatively to either of these questions results in incredible unfairness, putting the burden entirely on the doctor's, or discriminating against the poor entirely. The logical extent of an affirmative answer is obviously absurd, as well, in a free market society: no one doctor is obligated to perform every service that every person requests of them, even if they are qualified to perform that service. In addition, the medical community at large does not even believe that individual doctors have an obligation to ensure that service is provided to every individual. An excellent example of this is a pair of articles recently published in The Journal of Law, Medicine and Ethics by Stan Block and Douglas Diekema. These articles take opposing sides on the question of primary care physicians dismissing families who refuse to vaccinate their children. Block states that when families refuse to vaccinate their children they arrive at an “impasse” which puts the pediatrician “in an untenable position, having to decide whether to provide substandard medical care or dismiss the family by ‘refusing the refusers’ of infant vaccines” (649), and goes on to advocate such a dismissal. Diekema, in his rebuttal to Block, does not disagree that pediatricians have a right to dismiss such patients, he simply attempts to demonstrate why such dismissals are “misguided”, and there are better option to convince families to vaccinate (654). While it may seem the articles would argue the right to dismiss, in fact the right to dismiss is not questioned, it is viewed as given by both sides that the physician has every right to decide not to provide services to those families whose values and paradigms of medicine are not compatible with their own. More than that, this right is viewed as a given even though there is a shortage of primary care providers (Schimpf). It is only in cases of controversial services that the right to choose not to provide certain services becomes an issue, and it is utterly unreasonable to mandate that medical professionals perform morally contested services when other services which meet all the same criteria of scarcity but are not morally contested go unmandated.
Another alternative view to the social contract paradigm that elucidates an individual doctor’s responsibility to society is posed by Law Professor Jeffrey Hammond, in his article “Conscience as Contract. Conscience as Covenant.” What Hammond proposes to replace the social contract argument is an individual contract between doctor and patient, but he even takes that one step further and proposes that the doctor patient relationship is, in fact, a covenant (433). He argues that
“the Doctor is free to enter into a contract with the patient, and the patient is free to enter into a contract with the doctor. A great deal of contemporary health law is built on the premise that the doctor and the patient freely enter into their relationship with each knowing their respective responsibilities up front -- the doctor to provide agreed upon treatment, and the patient to pay for those services. . . if the doctor is to exercise his rights in conscience he should give wide berth to his counterpart the patient. The patient should know before treatment begins what the doctor will do and will not do for the patient” (436-437).
He says legally there must be other viable options to choose or not choose the contract by both parties in order for it to truly be a contractual relationship. Taking it to the next step Hammond explains that traditionally there have been three revered, almost sacred relationships, in which the government cannot interfere: the attorney-client relationship, doctor patient relationship, and the relationship between religious clergy and their followers (440-441). Doctors, he claims, often have a more intimate knowledge, “in the biblical sense” (440), of their patients than anyone but their intimate partner. He he explains that “Physicians who view their relationship in particular Hippocratic norms repose their skill into their patients, as their patients repose their trust in them, and that “this trust-bound relationship” (443-444), “is a covenant relationship that is an extension of the larger covenanted relationship that the doctor has with medicine itself and the larger public” (441). Finally, Hammond points out, “the entire point of medicine is wrapped up in the following aphorism that doctors intuitively know: their job is ‘always to care, never to kill” (443). This intuitive conviction that medical professionals have, to ensure they use their extensive knowledge of the human body and medicines to heal, to help, and to care instead of using it to gain power over others, to kill, or to harm people to promote other goals is at the very heart of their covenant with those they serve. If a doctor were to do violence to himself by violating this aphorism, he would also be violating the sacred trust placed in him by the patient, and therefore violating the covenant and contract he had with the patient. Therefore, requiring a medical professional to violate their conscience in order to better serve their clients is potentially more detrimental to the client than helpful. Even in the cases where a doctor “conscientiously” refuses to perform a procedure for someone because they are a different race, as Dresser also points out, forcing them to perform the procedure anyway endangers the patient and does not promote the highest standards of care (282). In this discussion it is also necessary to note that as much as society would like to think of medical professionals as individuals who have answered a divine calling and dedicated their lives to healing and helping others, there job is a job. Just like anyone else’s job, they perform a service, and they get paid. Of course there are standards of care and moral obligations involving those in a greater position to do good than the rest of society, but at the end of the day someone needs a service, the doctor offers to provide that service, and the doctor gets paid for that service. America is a free market society complete with competitive prices and incentives, and medicine in the United States is not an exception to that. It is unjust and a gross violation of conscience to require physicians to perform contested services simply because they are contested when other physicians are afforded very large berth to refuse services to patients with whom they feel their values, standard of care, and hippocratic oath are at odds.
4. Conclusion
It is unreasonable to force pharmacies to provide every drug someone might ever want, and it is unreasonable to force someone to violate their conscience, even if they are being payed for it or given a “monopoly” in which to do it. In order to preserve not only the covenant relationship between the medic and her profession, but to preserve to the highest degree the covenant of the medical professional to the rest of society to provide what she considers the highest standard of medical care, the medical professional must, of necessity, be able to fully bring to the doctor patient relationship the full extent of her moral convictions relating to her practice. The medical community has an obligation to perform medical services for society and to ensure that services it deems necessary are provided, but at the same time a person cannot have a moral obligation to violate their conscience or the seat of their morality. The obligation the individual medical professional has is their obligation to their own conscience and their contracts and covenants with their patients. In order to ensure the highest quality of of service within the individual contracts and covenants a medical professional’s freedom of conscience and right to conscientious objections ought to retain its protected status.
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