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Conscientious Provision

Almost all of the academic discussion about conscience protections in abortion law concerns the right to conscientiously refuse participation in abortion treatment. But could abortion provision not also be regarded as a matter of conscience? In recent years, some scholars have argued that it ought to be. Such scholars have suggested that the respect for moral integrity which justifies exemptions for conscientious ‘refusers’ of abortion treatment should equally extend to those medical professionals who feel motivated by conscience to provide abortion care, and who feel that the refusal to provide treatment to patients requesting terminations would entail a breach of their conscience. In the years before abortion was broadly legalized in the United States and Britain, many of the physicians who took personal risks to deliver illegal abortion care to desperate women might well be described as acting out of ‘conscience’^1 Developing this line of thought, some academics have argued that we ought to acknowledge the symmetry of conscientious refusal to provide abortion treatment and conscientious commitment to providing that treatment. In a recent article, for example, Bernard Dickens takes up the long-contested

21 See generally Carole Joffe, Doctors of Conscience: The Struggle to Provide Abortion Before and After Roe v Wade (Beacon Press 1995).

matter of conscience rights in the realm of abortion, his stated aim being to ‘release “conscience” from capture by those who object to participation in induced abortion’^ Dickens advocates a symmetry between conscientious objection to abortion provision and conscientious commitment to that provision, arguing that those who are driven by conscience to provide abortion service should enjoy exemption from state-imposed or hospital-specific prohibitions on abortion in much the same way that those morally opposed to abortion are often exempted from duties of provision on conscience grounds. In short, if one medical professional can exempt herself from legal abortion treatment on grounds of conscience, why cannot another medical professional, on the same grounds, insist on providing abortion against a hospital policy or outside the limits of the law?

I have some reservations about this symmetry argument. First of all, it seems to me to matter greatly for the conscientious provision argument what the source of the relevant prohibitions are. Where what is in question is a conscience exemption to a state prohibition on abortion, I think it clear that the symmetry argument does not go through. The justification for conscientious objection exceptions to legal duties is the extension of tolerance and compassion to individuals who, as a result of their (presumably misguided) moral convictions will suffer if made to perform them, where the exemptions can be made without undermining the purpose of the law. (Hence, as mentioned earlier, pacifists in wartime can be tolerated only while there are still sufficient numbers of conscripts.) These conditions are not met where the law in question is not a positive legal duty but a prohibition, since any exception on grounds of conscience will undermine the very aims with for which the ban was imposed. Such would undoubtedly be true of a ‘conscientious commitment’ exception to prohibitive abortion laws. The two therefore do not follow the same logic. Likewise, the pacifist’s right of conscientious abstention implies no symmetrical right to conscientiously wage an illegal war or form a militia against the laws of the state.

A very different kind of case is where performing an abortion would be legal but the healthcare institution in which a medical professional works will not perform it as a matter of policy. Suppose that the individual physician feels conscientiously committed to carrying out the termination, which she regards as clearly being in the interests of the patient, and therefore part of her moral duty as a healthcare provider. Could the ‘willing provider’ in the refusing institution plausibly claim a right to defy the hospital’s policy as a right of conscience? This kind of case is of greatest relevance in the United States, where a large proportion of healthcare is delivered by, funded by, or affiliated with the Catholic Church, which maintains policies against delivering various treatments, abortion among them, even when they are permitted by law.

Elizabeth Sepper has considered this kind of situation at length, arguing that there is a good case for symmetrical conscientious provision rights for a willing provider working in a refusing institution, to mirror the legal conscience rights that

22 Bernard Dickens, ‘The Right to Conscience’ in Rebecca Cook, Bernard Dickens, and Joanna Erdman (eds), Abortion in Transnational Perspective (Pennsylvania University Press 2014) 210.

objectors may claim when working in institutions willing to provide abortion treatment^3 As Sepper explains, there are numerous ‘conscience clauses’ designed to protect doctors who do not want to participate in treatments offered at their place of employment. As she says, those conscience clauses have been extended to entire hospitals and healthcare systems. However, Sepper notes that those conscience protections are asymmetrical, since they offer no similar protection to doctors or nurses who feel compelled by conscience to deliver a controversial treatment to a patient in need. She writes:

[E]xisting legislation generates significant asymmetries in the resolution of conflicts between medical providers and the hospitals, clinics, and nursing homes where they practice—which scholarship has not yet challenged. Whereas a doctor who refuses care for reasons of conscience cannot be disciplined and must be accommodated by her workplace, a doctor in an institution that restricts care ... can be fired for following his conscience and providing medical care in violation of institutional policy. In one workplace, institutional conscience yields; in the other, it overrides the individual conscience.24

Sepper argues that there is no sound basis for this asymmetry. ‘Taking conscience seriously’, she claims, requires us to negotiate equally between competing claims of health providers and the facilities in which they work—whether they refuse or are willing to provide controversial care.’25 All doctors and nurses have equal claims of conscience, whether they conscientiously refuse to perform or conscientiously insist on performing abortions.

As Sepper outlines, lawmakers have also recognized institutional conscience claims on the part of refusing healthcare institutions.'26 Entire hospitals and healthcare systems can avail themselves of these conscience exemptions and refuse to deliver contested treatments. As she explains, in some jurisdictions ‘broad conscience clauses allow any corporation or entity associated with healthcare— including insurance companies—to decline to participate in, refer for, or give information about any healthcare service for reasons of conscience.’'7 All employees of those institutions, whatever their religious or secular moral beliefs, must then abide by those restrictions. In Sepper’s view, this introduces yet another asymmetry, because it is only in respect of refusing institutions that the law has recognized the concept of ‘institutional conscience’.

This yields asymmetrical results when it comes to conflicts between individual healthcare providers and the institutions in which they are employed. When a conflict arises between the convictions of a refusing individual and a willing institution (a hospital willing to provide abortion care or other contested treatments), the individual’s right to conscience wins out. The institution is not taken to possess a comparable conscience-based interest in providing the treatment which can override the individual’s refusal. However, when an individual willing provider comes into conflict with a refusing institution (an employer which maintains a policy against delivering abortion), it is the refusing institution’s ‘conscience’ that wins

  • 23 Elizabeth Sepper, ‘Taking Conscience Seriously’ (2012) 98 Virginia Law Review 1501.
  • 24 ibid 1506. 25 ibid 1505. 26 ibid 1513. '7 ibid.

out. Whether institution or individual, it is always the refuser whose claim is preeminent. Sepper illustrates the situation with the following diagram28:

Refusing Institution

Willing Institution

Refusing Individual Provider

No conflict

Individual wins

Willing Provider

Institution wins

No conflict

Sepper believes that the concept of ‘institutional conscience’ is in truth a ‘bad fit’ for refusing institutions, believing that the best arguments in favour of institutional conscience rights better reflect the simple value of moral association.29 Moreover, as she notes, some institutions which assert a religious objection to certain healthcare aren’t actually affiliated with any religion, and the imposition of religious doctrine in healthcare systems, far from being a reflection of the convictions of its members, is often rather owed to changes in corporate ownership or affiliation—for example, acquisitions by Catholic healthcare systems.30 Her main point, however, is simply that on any conception of individual or institutional conscience, there is no justification for always privileging refusers over willing providers in conflicts.

Sepper acknowledges that recognizing the ‘equality of human conscience’ cannot j ustify exemptions from law for any act of conscience. 31 As she says, the value of conscience might well be outweighed by other considerations, such as public welfare, and a ‘well-ordered society’ might well demand that people follow the objected-to law ‘or face repercussions’.32 However, she maintains that whenever a contentious issue, such as participation in abortion, is subject to conscientious exemptions that are allowed to ‘trump’ legal or employment demands, ‘fairness requires extending exemptions equally’—meaning, I take it, to all conscience claims about the same matter.

One might wonder whether Sepper does not make the unwarranted assumption here that issues of conscience can always go both ways on a contentious issue. This is clearly not so. A vegetarian’s decision to abstain from eating meat products is a core example of a practice of conscience, but conscience is not thereby implicated in anyone’s omnivorism. However, let us take Sepper’s main point to be that abortion provision at least can be a matter of conscience, and that since this is the case, conscience protection should be symmetrical whether the conscience claimant is a willing provider or refuser.

I do not contest the claim that abortion provision can be an issue of conscience for willing providers, which I think evidently true. The more pressing question for Sepper’s argument is whether there exist any salient asymmetries between conscientious provision of abortion and conscientious refusal to participate in abortion treatment which might be used to explain or justify the asymmetrical treatment of the conscience claims. One obvious suggestion, noted by Sepper, is that there is a morally salient difference between doing and allowing harm that goes to an

  • 29 ibid 1526.
  • 30 ibid 1523.
  • 31 ibid 1531.
  • 32 ibid.

individual’s depth of moral implication in a bad outcome. A person who is required to participate in an abortion against her conscience has agency in bringing about an outcome which she deems morally repugnant. A ‘willing provider’ on the other hand, who is barred from performing what she regards as a morally necessary abortion, has only failed to prevent the bad outcome: the refusal of the abortion. Could this difference justify greater protection for conscientious refusers than for willing providers?

Sepper addresses this objection that there is a moral distinction between being compelled to perform an action and being compelled not to perform it.[1] She dismisses the claim that it counteracts her symmetry argument, partly for the reason that the distinction between acts and omissions is ‘insufficient to explain moral responsibility in the medical field’. Certain medical omissions, for example, the unilateral decision by a doctor to fail to perform CPR on a patient, render the agent morally and legally responsible notwithstanding the fact that they are not acts. This is of course true, but at most it establishes that omissions are not, by nature, outside the realm of moral responsibility. It does not counteract what we might call the ‘asymmetry claim’ that, all things being equal, it is worse to compel someone to cause harm against their conscience than to allow it. It is no doubt right, as Sepper says, that moral integrity can be damaged by failing to perform an action one believes one is clearly morally required to perform. Still, being compelled to be the agent of harm is, in the eyes of many, more damaging to moral integrity than being compelled to refrain from helping. A person who is compelled to carry out genocidal atrocities is more seriously harmed than someone who is prevented from doing something to stop them.

The genocide example is a good test case for the difference between doing and allowing harm in the compromise of conscience because the harm the individual wishes to avoid participating in or prevent from taking place is the same across the two cases. But this is not true of abortion. The conscientious objector who desires exemption from participation in abortion is seeking to avoid being complicit in what she regards as homicide or the immoral destruction of valuable human life. The harm which the conscientious provider seeks to avoid allowing by omission is different, being the harms of unwanted pregnancy. These harms can, but very rarely do, entail the death of a human being. This, then, may be another important point of asymmetry between the two cases. For the conscientious objector, being compelled to act is a more morally grave affair than being compelled to abstain is for the conscientious provider.

Thirdly and finally, an asymmetry may also arise with respect to the effect of the conscientious exemption on a hospital or healthcare institution’s interest in maintaining its particular policy on abortion. As I said Sepper believes this interest is best characterized as an interest in moral association: the freedom for healthcare practitioners with similar moral goals to unite under the same mission statement. I am sure Sepper is right to suspect that in many cases, the value of moral association in a policy of refusal is in fact illusory, in large part because the policy does not reflect the convictions of many, if any, of the associates. However, insofar as operating a policy of refusal is considered to be a legitimate means for an institution to maintain a particular moral identity, it seems clear that accommodating the consciences of willing providers will significantly compromise that policy, and hence that interest, for refusing institutions. A refusing institution cannot maintain a moral identity that is dependent upon refusing abortion treatment whilst, at the same time, allowing for exceptions to protect the conscience of willing providers. But the same does not hold when a willing institution accommodates the conscience of refusing doctors. A providing institution can clearly accommodate some refusers without compromising its policy aim of facilitating legal abortion, so long as the number of refusers it must accommodate does not make the implementation of abortion treatment untenable. This is another potentially significant asymmetry, since it will only take one willing provider to undermine the moral aims of the refusing institution, but many more to undermine the aims of a willing one.

Even if we grant that institutional conscience can cut both ways, then, the argument could be made that a refusing institution’s claim is stronger against an individual willing provider’s conscience claim than a willing institution’s is against an individual refuser. Sepper may well be right to believe that conscience is, in the end, a bad fit for institutions. But the considerations here nevertheless go to show that the symmetry argument may be more problematic than first appears. Even where the ‘refuser’ is an institution, however, the right to conscientiously object to legal abortion provision will still be subject to the limits I outlined in the sections above. In particular, this might limit an institution’s right to refuse abortion treatment in any scenario where the effect of the refusal is to preclude a woman’s access to safe, legal abortion altogether.

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