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The Burdens of Conscience

A third and final core consideration when framing a limited right to conscientious objection is the onerousness of requiring objectors to assume the burdens of their own objection, or, in the alternative, of requiring other people to assume them. It is important to hold in mind yet again that right of conscientious objection is not the only thing standing in the way of incurring a duty to assist in abortion—indeed, it is not the main thing. Naturally, the most ideal way for an objector to avoid participation in abortion, direct or indirect, is simply to avoid any situation in which she could be foreseeably called upon to participate. This is never impossible to do—no one need be a health practitioner of any sort—but will at times come at a cost for the objector, the magnitude of which varies depending on their role. As we saw, the function of conscience provisions in law is to protect objectors from the ordinary, possibly detrimental consequences of refusing to perform tasks as part of abortion treatment. A core question is therefore how far the law should seek to ameliorate the consequences of a health practitioner’s refusal, which is, at bottom, a question about who should bear the burden of the objection. Refusing an exemption places the burden of avoidance squarely on the objector. Providing an exemption, on the other hand, requires others—the employer, or the health authority—to bear the cost of accommodating the objector by finding alternative providers whilst keeping the objector in her healthcare role.

How much burden can an objector be expected to shoulder in order to avoid being so positioned that she is called upon to participate in abortion treatment? The avoidability of the objectionable activity for the conscientious objector will have much to do with this determination. On the whole, it is acceptable for us to require objectors to shoulder the burden of their own convictions, especially given the assumption that those convictions are morally erroneous. Raz writes:

[T]he circumstances which lead to the conflict between law and one’s perceived moral duty are normally subject to one’s control and if one desires to remain faithful to one’s moral principles one could, even at cost to oneself, prevent them from arising. Hence, especially given the prima facie nature of the claim that the law should not coerce one’s conscience, society is entitled to require the individual to shoulder the burden of his convictions rather than require society itself, which regards them as wrong convictions, to do so.[1]

As Raz claims, it is normally acceptable to expect the conscientious objector to bear the cost to others of his adherence to principles, and therefore little reason for the state to make exemption for liability in damages, or other consequences of refusal. In some situations, however, the burden of avoidance for the objector might be particularly onerous. And where that burden can be eased without undue cost to others, the prima facie right to protection of conscience may legitimately prevail. The avoidability of the disputed activity for the objector and the ease of accommodating his objection will therefore be the two main considerations in the balancing of burdens. With regard to the first consideration, it demands quite a lot in the way of personal sacrifice for the law to tell an objector that the only way she may securely avoid the duty to participate in abortion is by not practising medicine of any kind; slightly less to tell her she cannot be an obstetrician-gynaecologist, and less again to tell her that she simply cannot not work in abortion clinics. In the case of Doogan and Wood, it might be argued that the options for avoiding all forms of participation in abortion were multiple and, hence, that the burden of avoidance was not so great. They might, after all, have only sought employment on wards that did not provide abortion treatment at all. Alternatively, they may have just declined to take up particular positions of responsibility that rendered all disassociation from abortion treatment difficult. Had Doogan and Wood been nurses or midwives on the ward and not ward co-ordinators, keeping them entirely out of abortion care would have been an easier matter for the health authority. It may appear from this that requiring Doogan and Wood to shoulder the burden of their conscientious objection to all forms of participation in abortion would not have limited their options too drastically, even within the healthcare system. Consequently, it might be suggested that the burden on them of avoiding all forms of participation in abortion by simply avoiding employment as labour ward co-ordinators on a ward facilitating some abortions was reasonable.

However, the merging of abortion care with maternal and other gynaecological services is a complicating factor here, as it possibly is elsewhere. Doogan and Wood had taken up positions of responsibility on a maternity ward where abortion treatment represented a very minimal yet increasing proportion of the work. In these circumstances, requiring them to shoulder the burden of their objections to all forms of participation in abortion would potentially exclude them from any managerial position in their field of expertise, which was maternity care and not abortion.

The unique factual matrix of Doogan is precisely what makes it a difficult test case for the scope of the section 4 right. It may well be, in the end, that the meaning of ‘participation’ in abortion cannot be widened so much as to exempt those whose job entails the supervision of abortion treatments, among other things, from absolutely all involvement in facilitating abortion without imposing undue burdens upon the healthcare system and on those wishing to access legal abortion. If this is indeed the case, though, it must still be remembered that the section 4 right is not needed to prevent coerced participation in abortion, but only to provide protection for individuals who wish to refuse participation in treatment whilst maintaining the role of a healthcare professional who is standardly expected to cooperate.

  • [1] Raz (n 12) 282.
 
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