Attacks on conscientious objection are part of an international campaign
to make abortion a basic human right
Mercactornet, 16 October, 2008
Reproduced with permission of the Family
Research Council 1
. . . conscience itself is not a moral or religious
belief; it is a rational faculty that allows us to apply our religious or
moral beliefs. If professional organizations and governments wish to force
physicians to violate their own consciences, they are not forcing them to
violate their religious tenets or moral beliefs, but rather their very moral
compasses implicit in their rationality.
In recent months we have witnessed an increase in attacks on physicians'
conscience around the English-speaking world. In the United States, Canada,
and Australia efforts have been made to curtail the right of doctors not to
refer for procedures like abortion-with varied degrees of success. The
similarity of these efforts should not be surprising to anyone following the
work of international pro-abortion activists seeking universal access "to
reproductive health services".
Such activists may have their work cut out for them in the United States,
whose oldest medical conscience protections date back to the Church
Amendments, passed in the wake of Roe v. Wade-and whose commitment
to conscience protection in general extends considerably further back in
Nevertheless pro-abortion activists have managed to make the parameters
of what constitutes an acceptable conscientious objection a contentious
political issue. Any success in curtailing these rights will rely on a
severely defective understanding of what precisely a conscience protection
defends. In the United States, public figures, agencies, and likely a large
section of the American people view conscience as a subset of religious
rights, thus allowing them to dismiss or marginalize it in our "pluralistic"
society. In reality, conscience is a rational, not religious function.
The United States has not been alone in fending off attacks against
physicians' conscience. As
Lea Singh has eloquently laid out on MercatorNet, the College
of Physicians and Surgeons of Ontario (Canada) recently tried to force
doctors to refer for abortion-only to be resisted, and leave the matter in
the less-than-capable hands of the Ontario Human Rights Commission. Similar
actions were taken in the Australian state of Victoria.
In the United States, as in Ontario, the impetus for the recent debate on
physicians' conscience came from the position of a medical professional
organization, the American College of Obstetricians and Gynecologists
(ACOG). In November 2007 the Ethics Committee for ACOG issued an opinion
stating that an obstetrician ought to refer for abortions if she objects to
performing them herself. This coincided with the obstetrics certifying
board, the American Board of Obstetricians and Gynecologists (ABOG) issuing
a bulletin on board certification that listed as a possible reason for
decertification non-compliance with ACOG ethical standards.
In short, the combination of these two positions made it possible that
pro-life obstetricians who refused to refer for abortion would lose their
certifications and thus their livelihoods.
In response to this, the Secretary of the Department of Health and Human
Services, Mike Leavitt, decided to take action in defending the conscience
protections of physicians by issuing new regulations. These regulations
apply the three pertinent pieces of federal legislation protecting
physicians' conscience: the Church Amendments, Section 245 of the Public
Health Services Act, and the Weldon Amendment. While they are on the books,
there were no regulations in place to help enforce them until Leavitt
proposed the pending regulations this summer.
(For more on the history of these regulations and their impact see Bill
Saunders and my Family Research Council paper "Conscience Protection in
Health and Human Services Regulations.")
Making abortion a positive right
These pending regulations, once entered into the Federal Register, will
go a long way in providing physicians with adequate protection for their
conscientious objections. Nevertheless, protecting the conscience rights of
doctors is a fight that will likely continue well into the future, since
conscientious objection is an obstacle to the international pro-abortion
movement that must be overcome in order for them to achieve their goal of
"universal access" to abortions.
As Maureen Kramlich has
showed in the Fordham Urban Law Journal, over the past 30 years
there has been a change in how the left has publicly approached the question
of abortion, changing their conception from one of a "negative right" to one
of a "positive right." Abortion in the context of Roe v. Wade is
something to which one has a right in the sense of being able to obtain an
abortion without government influence (a so-called negative right).
But, increasingly, the international pro-abortion movement presents
abortion as something that women have a right to be granted. That is, women
no longer can simply go about the business of having an abortion without
external meddling; rather meddling is necessary to ensure that each and
every woman can obtain an abortion should she desire one (a so-called
positive right). As such, a doctor who refuses to be complicit in an
abortion can deny a woman that right by inconveniencing her or possibly
denying her effective access to abortion. The positive right to abortion
demands that such circumstances be eradicated.
Concrete examples of this change in the course of activism can be seen in
recent public stances by the International Planned Parenthood Federation.
IPPF put out a lengthy document entitled "Access
to Safe Abortion: a tool for assessing legal and other obstacles." This
document is intended to be a primer for those seeking to change the abortion
laws in countries where abortion is restricted, by showing the typical legal
obstacles to abortion and instructing activists how to go about eliminating
Section 12 of the document is "Conscientious Objection," a concept that
"shields providers from liability for refusing to offer services that their
patients are legally entitled to receive." These clauses can "deny access to
services and violate providers' duty of care to patients." As such any
conscientious objector ought to "give notice" to her patients that she
objects to certain "care" on moral grounds and be prepared to refer them to
those who lack such compunctions.
Likewise a late 2007 UN-sponsored
conference in England, "Women Deliver", emphasized the impediment caused
by conscientious objection and the need to limit it as a necessary step to
achieving universal abortion-on-demand.
These international pro-abortion norms have been adopted here in America
by many organizations that filed comments with HHS on the proposed
regulations. The American Medical Association (AMA) argued that the new
regulations ought not to be promulgated because it might "undermine
patients' access to medical care and information." Doctors who follow their
conscience might violate their "paramount responsibility and commitment to
serving the needs of their patients". Put another way, doctors may have
moral qualms with the practice of abortion, but those personal moral beliefs
cannot interfere with the wishes of their patients or the determinations of
what constitutes adequate medical care by the bureaucratic establishment of
the medical profession.
The true nature of conscience
Part of how opponents to conscientious objection can make these claims
effectively is through a common misconception concerning the nature of the
debate. Oftentimes it is seen as a conflict between secular, medical right
on the part of women seeking abortions, and a religious, sectarian right on
the part of the doctors who do not wish to perform or refer for them. This
misconception is exemplified in comments filed by members the Equal
Employment Opportunity Commission. They contend that "the proposed
regulations may violate the Establishment Clause" of the Constitution --
because the receipt of federals funds is conditioned "to give preference to
particular religious beliefs."
Of course, this view is far from the truth: conscience is not a subset of
religious belief but rather a subset of rational action. When one acts in
keeping with his conscience, it is a rational determination of what the
right action is in a specific set of circumstances as it relates to
larger, more abstract moral principles. In other words, a doctor may believe
that it is immoral to take innocent human life, and thus abortion is an
immoral action. When presented with the occasion to perform or refer for an
abortion, that doctor is forced to make a moral judgment, informed
by his prior beliefs about the immorality of abortion. That moral judgment
prevents him from performing or referring for the abortion and that is what
is termed his conscientious objection.
Conscience itself is morally neutral, and operates independent of moral
belief, since it is the rational application of accepted moral norms. Those
moral norms are the beliefs of the individual, which, through conscience
become moral judgments in the practical situations of everyday life. One can
err on one's moral judgment-just as one can make a mathematical error-or one
can make such moral judgments based on faulty moral premises (what we would
call in improperly formed conscience, since it is the rational application
of faulty norms).
But conscience itself is not a moral or religious belief; it is a
rational faculty that allows us to apply our religious or moral beliefs. If
professional organizations and governments wish to force physicians to
violate their own consciences, they are not forcing them to violate their
religious tenets or moral beliefs, but rather their very moral compasses
implicit in their rationality.
Getting past the straw man of conscience as a religious artifact, the
argument against medical conscientious objection is premised on the belief
that the moral judgments of the individual must necessarily fall by the
wayside in order to preserve the "greater good" in the form of "access to
reproductive health services."
The moral problem with this position is neither a new one, nor a
sectarian one. It is an argument that has been regarded as unsound going
back to classical antiquity, and what Cicero called "the first mandate of
justice": that one not harm another person unless wounded by injury, and
then that one use common things for the common good. Justice requires
that a person is first obliged to do what is right himself,
and then look to the common good. Just like any other moral agent, doctors
should be allowed to adhere to this same moral standard in the application
of their consciences.
Family Research Council
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