There has been a lot of media attention recently on conscientious objection (CO), mostly due to a bill currently being considered by the US Congress: HR 4828, the Conscience Protection Act of 2016. The bill protects all health care providers and health care insurance companies from facing discrimination or fines for being pro-life. It states that the government cannot force health care providers (such as churches and universities) to cover abortions through their insurance plans, nor can the government force health care professionals to perform or participate in abortions.
A bill like this seems like common sense to me. After all, historically, individuals have been able to object to and refrain from participating in acts which take human lives. Individuals have been allowed to object to participating in wars, and physicians have even been excused from performing duties such as administering lethal injections as part of capital punishment. It is scientifically certain that abortion, too, takes the life of a human being. It’s therefore logical that if abortion is to remain legal, the right to conscientious objection should extend to protect a physician’s decision to excuse themselves from performing this procedure.
However, these types of laws are frequently criticized for being paternalistic, by giving greater importance to the judgment of a health care professional than a patient, and for limiting a woman’s access to abortion. Christian Fiala and Joyce Arthur (the second of whom belongs to the Abortion Rights Coalition of Canada) refer to conscientious objection (CO) in the case of abortion as “dishonourable [sic] disobedience.” They state that “healthcare professionals who exercise CO are using their position of trust and authority to impose their personal beliefs on patients, who are completely dependent on them for essential healthcare. Health systems and institutions that prohibit staff from providing abortion or contraception services are being discriminatory by systematically denying healthcare services to a vulnerable population.”
In my medical training, I have been told to avoid paternalism with respect to my patients' treatments in favor of “shared-decision making.” Shared decision making is described by the Informed Medical Decisions Foundation as “a collaborative process that allows patients and their providers to make health care decisions together. It takes into account the best clinical evidence available, as well as the patient’s values and preferences.” They go on to say that, “Shared decision making brings at least two experts to the table.…The provider is an expert in the clinical evidence. Patients are experts in their experiences and what matters most to them.”
In this way the patient and the provider enter a partnership in which they both agree to work together with the information each of them has to develop a solution for the patient that best fits their needs. Ideally, shared decision making should “honor both experts’ knowledge.” In this model, the patient cannot be forced to undergo a treatment based solely on the physician’s decision. But in the same way that a patient has the right to refrain from a treatment based on what they believe is right for them, so too does the provider have the right to object to administering a treatment that they have good medically based reasons to believe could cause harm.
Physicians do have reasons to believe that abortion causes harm. The science is clear on the fact that the life of a human organism begins at fertilization. Abortion, therefore, ends the life of a human. Moreover, there is a mound of literature supporting the connection abortion has with breast cancer, preterm birth, and psychological harm. These studies are often criticized for coming from supposedly pro-life sources. However, pro-choice documentary filmmaker Punam Kumar Gill has criticized the pro-choice community, in her recent documentary, Hush, for disregarding, without good reason, the massive amount of evidence supporting claims of a link between abortion and these health problems.
Thus, given that abortion ends the life of a human being and that it is associated with grave aftereffects for pregnant women, it is well within the realm of shared decision making for a physician to refuse to perform an abortion on the grounds that it does more harm than good to their patient(s). Implying that this objection is paternalistic also implies that the patient is forced to go along with their decision, but of course this is not the case. Patients are free to find another provider who will provide these services if they truly believe they are what the patient needs. To take the example of a different type of medical situation, some physicians favor more holistic and natural medicine and refuse to provide prescriptions for painkillers. In such cases, patients are free to seek such prescriptions from other physicians.
Of course this brings us to the next criticism of CO laws: that they limit a woman’s access to abortions. In certain areas of certain countries, a large number of providers will not perform abortions, so that it’s difficult for women to find anyone who is willing to provide them one. For example, 69% of all gynecologists in Italy refuse to perform abortions; in some regions of the country, the number is over 80%. The question that is important to ask, however, is whether or not the right to an abortion, in communities where abortion is legally permitted, is to be understood as a positive or negative right.
In ethics, a positive right is generally understood to be a claim by one person that other people are obligated to fulfill. A negative right is a claim by a person that others are obligated not to thwart or interfere with. Which rights should be considered positive or negative is open to debate, but one basic minimum standard for judging a right to be positive is whether someone’s life depends on fulfilling the claim entailed by the right. For example, individuals in the United States have a positive right to emergency health care in dire circumstances—if an individual is dying and goes to the Emergency Department seeking care, physicians are required to stabilize him or her.
If the right to an abortion is a positive right in the same way as the right to emergency care, then if a woman wants an abortion, a physician would be obliged to provide one should no other physician be available. However, if it is a negative right, then the only thing that is required is that no one try to prohibit a woman from obtaining an abortion if she wants one, and so a physician could invoke CO to opt out of personally providing one. So is the right to abortion a positive right, analogous to an individual’s positive right to emergency care?
I think the answer to this question is obvious: absolutely not. Emergency care is necessary to improve the health of an individual who is dying. However, while abortion is often portrayed as a vital women’s health service, there is nothing essential about it as a medical procedure. Let me be clear: there is absolutely no medical indication for abortion in the case of a healthy pregnancy. Pregnancy is not a disease. Moreover, there is no reason to believe that a woman’s health will be improved by carrying out an abortion procedure and, as we already covered, there are actually several reasons to believe her health could be harmed (breast cancer, preterm birth, and psychological stress). To say that a physician is harming their patient by conscientiously objecting to providing an elective procedure is a radical and extremist position, based on false information. Abortion, in the cases where the pregnancy is healthy, is a completely elective procedure, and thus, there is not a substantial enough reason to consider it a positive right (if it should be considered a right at all) in order to override physician consciences.
If abortion is a negative right, then all that is important is that an individual doesn’t actively impede a woman’s ability to obtain an abortion, and of course simply refusing to be the individual who provides the abortion through CO is not the same as actively preventing her from obtaining one. Consider another elective procedure: cosmetic surgery. A patient is free to seek a surgeon who is willing to perform a cosmetic surgery on him or her, but if the surgeon feels, for whatever reason, ethically conflicted about the surgery the patient is requesting, the surgeon certainly shouldn’t be obliged to perform it. Cosmetic surgery, like abortion, is not a life or death situation, and neither one of these procedures function to improve the patient’s health.
Many are quick to point out, however, the instances when pregnant women may have chronic conditions or complications in their pregnancy that could lead to their death if not for abortion. They assert that in these cases doctors are obliged to provide abortions. However, whether or not these situations ever actually exist is contested. In fact, since 2012, over 1000 medical professionals have signed the Dublin Declaration on Maternal Health, which states that, “As experienced practitioners and researchers in obstetrics and gynaecology [sic], we affirm that direct abortion—the purposeful destruction of the unborn child—is not medically necessary to save the life of a woman.”
The reasoning for this is that, in any case in which a pregnancy might be harming a woman’s health, there are treatments available that don’t involve the direct and intentional termination of the preborn child’s life. The Declaration explains, “We uphold that there is a fundamental difference between abortion, and necessary medical treatments that are carried out to save the life of the mother, even if such treatment results in the loss of life of her unborn child.”
Given the availability of alternative treatments in cases where the mother’s life is in danger, CO to abortion should still be the right of a physician. CO is something that is easily accommodated by the shared decision making model of medicine. If limited access results because a large percentage of physicians object to performing the procedure, then we need to keep in mind that while a woman may have the legal right to seek an elective abortion, it certainly shouldn’t be mandated that physicians provide them. However, the most important reason CO should remain an option so long as abortion remains legal is the sheer fact that it is an act that terminates the life of a human being. No person should be forced to participate in such an act of violence against their will.
Works Cited
1. “H.R.4828 - Conscience Protection Act of 2016,” US Congress, accessed October 22, 2016, https://www.congress.gov/bill/114th-congress/house-bill/4828.
2. Christian Fiala and Joyce H. Arthur, “Dishonourable Disobedience—Why Refusal to Treat in Reproductive Healthcare is Not Conscientious Objection,” Woman—Psychosomatic Gynaecology and Obstetrics 1 (2014): 12–23.
3. “Why Shared Decision Making?” Informed Medical Decisions Foundation, accessed July 24, 2016, http://www.informedmedicaldecisions.org/shareddecisionmaking.aspx.
4. For more information, see the documentary website, http://hushfilm.com/. Fiala and Arthur, “Dishonourable Disobedience.”
5. “Dublin Declaration on Maternal Healthcare,” accessed October 26, 2016, www.dublindeclaration.com.
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