Professional Conscientious Objection in Medicine with Attention to Referral
Cavanaugh, T. A., Ave Maria Law Review
At the University of Notre Dame's 2009 commencement, President Obama proposed to "honor [he conscience of [hose who disagree with abortion and draft a sensible conscience clause, and make sure that all of our health care policies are grounded not only in sound science but also in clear ethics as well as respect for [he equality of women." (1) This paper rakes up the President's suggestion by addressing conscientious objection in medicine. In what follows, this paper presents [he principal features of a sensible clause while elaborating upon the need to extend conscientious objection to include referral, a particularly controverted claim.
What is a sensible conscience clause? First, one needs to distinguish professional conscientious objection in medicine from conscientious objection in employment more generally. The former concerns those who have publicly, or pro fateri, said what [hey stand for: professionals. (2) They have articulated and publicly stated an account of medical care that delimits what [hey take to be within and without [he practice to which [hey commit themselves. Most importantly, this account includes their conceptions of themselves as medical practitioners and what constitutes a patient, a disease, health, and medical therapy. Physicians, nurses, and pharmacists are medical professionals; ultrasound, radiology, and surgical technicians are not. A sensible medical conscience clause bears on the former. Conscientious objection in employment more generally would address the latter, just as it would address the issue of, for example, Islamic taxi drivers' religiously-based objections to transporting passengers carrying alcohol. (3) Thus, what follows concerns professional conscientious objection in medicine.
This account understands a profession to have an independent character autonomous from what law permits and society accepts. While there is pluralism within professions concerning particulars, and, therefore, disputes within the professions concerning their self-conceptions, a profession and professionals, as such, always stand for something more than the efficient use of skill. Put most generally, this something more amounts to their view of the good they seek and the bad they avoid, or, their ethic. With this distinction in mind, and noting that conscientious objection bears on otherwise legal patient requests, the following outlines a conscience clause for medical professionals. After delineating conscientious objection, this Article will present the obligations attending it.
II. GENERAL FEATURES OF A SENSIBLE CONSCIENCE CLAUSE
First, the professional objects based upon her professed account of medicine. Her account is public, promulgated, graspable by others, and scientifically-grounded. The objector must be capable of giving reasons accessible to others, in contrast to asserting an entirely personal stance. These reasons must refer to empirically grounded concepts of health, disease, the subject of both (the patient), the goals of medicine, its capabilities, and its boundaries. So, for example, an obstetrician who objects to circumcising a healthy newborn male may do so based upon his account of bodily integrity and the proper functioning of organs. For similar reasons, a nurse may object to being involved in a sterilization post-caesarian section. A pharmacist in Oregon or Washington might object to a terminally ill cancer patient's legal request to fill a lethal prescription for physician-assisted suicide in terms of life not itself being a disease. An anesthesiologist might object to her participation in capital punishment by reference to her account of the very concept of a patient and of sickness. In doing so, each of these professionals offers a reason-based explanation available to others for objecting to the relevant request. Professionals offer such explanations not in terms of exclusively personal beliefs, but rather, in terms of accessible, albeit controverted, answers to the central questions of medical practice. …