Abortion, Conscience and Health Care Provider Rights
Originally appeared 26 July, 2012
Public Discourse: Ethics, Law, and the Common Good
Online journal of the
Witherspoon Institute of Princeton, NJ
Reproduced with permission.
In this essay, I will elaborate the ACOG
account, juxtapose it to what I call the "classical account" as defended
in Western philosophy, and finally answer the question whether
healthcare providers have a right to refuse to treat some patients.
A faulty understanding of conscience as an instrument of subjective
preferences and feelings is fueling efforts to undermine conscience
protection for doctors who oppose abortion and provision of
In November 2007 the American College of Obstetricians and Gynecologists
(ACOG) published an
opinion that if a woman's physical or mental health were at risk,
medical practitioners had "an obligation" to provide "medically indicated"
abortions "regardless of the provider's personal moral objections." It
acknowledged that respect for consciences is important, but that
"conscientious refusals should be limited if they constitute an imposition
of religious or moral beliefs on patients."
The ACOG's opinion motivated the Bush administration in summer 2008 to
establish federal regulations meant to ensure that laws on the books
protecting the right of health-care workers to conscientiously object to
involvement in abortions and sterilizations would be duly enforced. The lame
duck administration issued the
regulations in December 2008. In March 2009, the new Obama
administration began a process of rescission. It argued the regulations were
unnecessary because conscience laws were already adequately upheld in U.S.
healthcare and that any positive goals they might achieve were likely to be
accompanied by unacceptable harms such as restricting access to legal
abortion for low-income women. The Obama administration formally
rescinded the regulations in February 2011.
Given the numerous
counterexamples, there are good reasons for rejecting the
administration's argument that conscience laws are adequately enforced. But
I do not pursue them here. Behind the controversy over the Bush regulations
lies the more basic question of whether healthcare providers have a right to
refuse to cooperate in medical procedures they judge to be wrong. And
beneath this lies the question of the nature of conscience more generally.
As far as I can see, the ACOG's conclusion has only one merit: it follows
consistently from its prior account of conscience, an account that reduces
the faculty to subjective feeling.
In this essay, I will elaborate the ACOG account, juxtapose it to what I
call the "classical account" as defended in Western philosophy, and finally
answer the question whether healthcare providers have a right to refuse to
treat some patients. In addition to setting forth what I think is an account
that is philosophically consistent and flexible enough to be useful in
discussions of public policy, I hope also to shed light on the way the
current administration understands conscience and the rights that attach to
it. For it is unquestionably the case that Obama's account mirrors the
The ACOG opinion on conscience
The ACOG refers to conscience as "the private, constant, ethically
attuned part of the human character"; conscience acts as an "internal
sanction" on action and inaction; it expresses itself in the form of "a
sentiment" such as: "If I were to do 'x,' I could not live with myself/I
would hate myself/I wouldn't be able to sleep at night"; not to direct
action in accord with it is to "betray oneself-to risk personal wholeness or
identity"; conscience is "authentic" when one believes that acting against
it will cause one to "experience guilt, shame, or loss of self-respect."
According to this definition, the moral disapproval that conscience
registers is essentially a strong feeling-a "sentiment"-of repugnance or
self-reproach that I feel when I compare my beliefs about my own moral
uprightness with contemplated behavior that I feel threatens those beliefs.
Conscience protects this subjective sense, elliptically referred to as
"moral integrity"; indeed, it is my "right" to protect it, for herein lies
the "soundness, reliability, wholeness and integration of [one's] moral
What happens when a conflict arises between my personal beliefs and the
objective duty of my profession to provide patient-centered care? Say, for
example, that I am a pro-life ObGyn faced with an urgent request from a
patient to abort her fetus. If conscientious refusal would constitute an
imposition of my values on a patient who does not share them, and if refusal
would negatively impact the well-being of the patient "as the patient
perceives it," then the claims arising from my subjective sense should not
be allowed to override my duty to the patient: "providers have an obligation
to provide medically indicated and requested [abortions] regardless of the
provider's personal moral objections."
Following this logic, our subjective moral sense and the faculty of
conscience that enforces it apparently have nothing to do with objective
right and wrong. But let's be clear: the ACOG's moral universe is not devoid
of normativity. The opinion refers to performing abortions as an
"obligation"; reproductive services "should be maintained";
conscience rights "should not be a pretext for interfering
with patients' rights to [abortion] services"; and so on (emphases added).
The opinion is full of normative assertions giving primacy to some judgments
over others. But if judgments of conscience stretch no wider than sentiment,
how is it that the ACOG justifies its own normative conclusions as superior
to those of abortion opponents? On this, the opinion is mute.
The classical conception of conscience
In its classical understanding, conscience is an operation of
reason-practical reason, interested in true knowledge for the sake of
acting. Reasoning practically entails, first, a process of deliberation over
interesting alternatives for action, and second, the judgment that this or
that alternative is right or wrong, and consequently rightly or wrongly
chosen. This presupposes a general cognitive framework of right and wrong.
This framework-our moral knowledge-is not merely an affectively supported
matrix of subjective beliefs, but the basic apprehension of a set of
propositions asserting truths pertaining to what is good, choiceworthy, and
consistent with human well-being. Practical reasoning, then, is the process
of moving from these "general principles" to practical conclusions. The
conclusions are judgments hic et nunc (here and now) that some
rational proposal for acting is consistent or inconsistent with human good,
and so is right or wrong. These judgments are acts of conscience.
So I exercise conscience whenever I consider what I or one for whom I
have some responsibility, including a group, including the entire community
the common good of which my good in part constitutes, should or should not
do. Conscience entails the entire realm of practical deliberation and
Now insofar as its acts are the acts of a person (i.e., a primary source
of moral agency), conscience's subjectivity is plain. But the propositional
contents of its acts do not merely signify the experience of an emotional
state: "I feel this is wrong." However closely interconnected conscience is
to human emotions, its judgments pitch themselves higher than affective
states. They are judgments upon reality: "X is right (wrong) and so should
(should not) be done whether or not I feel like it." The realm of
conscience, then, is the realm of the rationally normative. And is it not
the case that squarely in the center of that realm sits the ACOG's judgment
that providers sometimes have an obligation to provide abortions regardless
of their personal moral objections? Do not its authors put it forward as
What, then, is a "conscience objection"? An objection follows from a
prior judgment that some option is wrong and should not be done. The
objection is precisely my rational opposition to adopting that option. It is
my unwillingness to do what I judge to be wrong. I may, of course, judge
something wrong that is in fact quite innocent. It would not be innocent,
however, for me to do it if I judged it in advance to be wrong. The
epistemological basis of obligation is the judgment itself. In this account,
wrongdoing is chosen-i.e., I am culpable for doing
wrong-whenever I judge something to be wrong and then reject that judgment
and do it; I do what I believe I should not do.
For this reason, conscience is said to be supreme in matters of action.
If self-direction and hence responsibility exist and are not fictions, then
judgments about good and evil must be the basis of right action. And they
must be binding.
Implications for public policy
We can affirm, then, both that conscience errs and that its judgments
always bind. They bind unless and until I come, perhaps through further
deliberation, new knowledge, or being disabused of some error, to a contrary
judgment. Although positive judgments do not always command action, but
rather sanction it ("X is legitimate and may rightly be done"), negative
judgments always command here and now in the form of a prohibition ("Y
should not be done").
To say that the duty to act consistently with my conscience is absolute
is simply to say that I should only do what I judge to be legitimate and
never do what I judge to be wrong. If this is the case, a negative
conscience judgment on some type of behavior seals the imperative not to
choose that behavior. Hence the proposition repeated in the ACOG opinion
that some conscience claims are "not genuine" and should be disregarded
seems to me false. To the extent that they embody moral judgments about
right action, conscience claims bind, even claims arising from
self-deception, invidious opinions, and aesthetic repugnance. This is no
more than to say that the conscience judgments of morally immature people
are binding. We overcome an immature conscience through education, not by
denying that its claims are "genuine." It follows that healthcare workers
never have a prior duty to carry out requests that they judge to be wrong.
Does it follow that every kind of conscience objection must be
accommodated without any consequences to workers? Rightful accommodation
certainly prohibits all forcible opposition. But it need not be incompatible
with the expectation that reasonable duties will be carried out. Who decides
what's reasonable? Ordinarily the question poses no conflict. When it does,
for example, in the vexed arena of so-called "reproductive services," where
orthodoxies clash, public policy needs to step in and give practical
definition to the scope of reasonable conscience objection.
For practical purposes, "conscience laws" are instituted to protect
claims arising from negative conscience judgments. I suggest that if some
kind of legally protected behavior elicits strong ethical disapproval from a
significant percentage of responsible healthcare professionals, then
conscientious objection from participation in that behavior should be
protected under law. This includes, for example, activities associated with
terminating fetal human life (e.g., undergoing, performing, assisting in the
performance of, requiring or providing training in the performance of,
providing referrals for, paying for, and providing coverage for abortions).
It also includes the provision of contraceptive services, which elicits
strong ethical disapproval from the largest non-governmental provider of
health care in the United States, the Catholic Church.
The ACOG opinion suffers from gross illogic and ideological bias. It
proposes that some moral judgments, namely, positive judgments related to
procuring an abortion in emergency situations, not only sanction the choice
for the abortion seeker, but apodictically command medical professionals to
carry out that choice on the seeker's behalf, irrespective of their
I have argued that moral obligation stems from the judgment of
conscience; that negative judgments issue in exceptionless prohibitions; and
that no professional obligation may override conscience's settled voice.
Actions that elicit strong ethical disapproval from large numbers of people
should be singled out by law as the protected subject matter of
conscientious objection. Whatever one's own ethical judgment on those
actions, political stability is better served erring on the side of liberty